California's Sacramento-San Joaquin Delta region produces many things: more than $650 million worth of agricultural products annually; billions of gallons of fresh water for cities and farms; recreational opportunities that generate millions of dollars for the region's communities. It also generates studies, reports and white papers. Truckloads of them. The largest estuary on the West Coast is one of the biggest ecological train wrecks in the nation, the focal point of a tectonic smash-up between human needs and natural dynamics. In consequence, it also has become perhaps the most-studied and squabbled-over body of water in the West. Task forces, commissions and think tanks concerned about the Delta have cranked out enough legal briefs, policy papers, scientific reports and newspaper op-ed pieces over the past two decades to fill a library. The latest contributions to that voluminous body of work, the final report of a governor-appointed "Blue Ribbon Task Force," hit the streets in December, calling for a fundamental reshaping of the way California manages the Delta. That report was issued at about the same time a federal judge issued his final decision in a case that will result in significant reductions this year in Delta water diversions. Those milestones were followed, in turn, by new scientific assessments warning — again — of imminent ecological disaster in the Delta's convoluted waterways. Ecological warning bells and buzzers have been going off so continuously and for so long in the Delta that they've taken on the quality of blaring car alarms in a congested urban neighborhood: part of the background noise, ignored by passers-by even though they're loud enough to wake the dead. But there's a good chance that 2008 will be the year, after more than a decade of policy paralysis, that California finally responds in a comprehensive and pragmatic way to the Delta alarms. The Delta matters to California for many reasons, principal among them the region's role as a linchpin in two water-supply systems: the State Water Project (SWP), which pumps water from the Delta and sends it on its way to more than 20 million urban users in Southern California, and the Central Valley Project (CVP), which also pumps water from the Delta and delivers it by canal to irrigate several million acres of San Joaquin Valley farmland. Bay Area communities also rely heavily on Delta water, as do farmers cultivating about 600,000 acres in the Delta region itself. And the Delta is at risk, as numerous reports have detailed over the past decade. Salt and pollutants threaten water quality. Most of the land in the Delta is below sea level and sinking, at the same time that sea level is rising. The 1,100-mile network of earthen levees protecting farms, pumping plants and other critical systems is poorly built and poorly maintained. If the levees fail — and the Department of Water Resources concedes there is a two-in-three chance of multiple simultaneous failures during the next 50 years — it could halt water exports and cost the state as much as $40 billion. The native Delta ecosystem also appears to be collapsing, with several species continuing to decline despite years of study and an investment of millions of dollars in ecological restoration in the Delta and the rivers that feed it. Invasive species are believed to be partly responsible for the decline of native flora and fauna, along with pollution and climate change. But experts also point a finger at the operation of the SWP and CVP pumps, which suck up and kill fish directly, and which alter water flows to such a degree that fish become fatally confused trying to make their way between upstream tributaries and the sea. The magnitude and persistence of that ecological trauma was underscored in early January by a pair of scientific reports. The first, issued January 9, found that populations of three key Delta fish species — longfin smelt, Sacramento splittail and American shad — plummeted to record lows last year, while two others (Delta smelt and striped bass) reached near-record lows. The data were gathered during the fall trawling survey conducted by the California Department of Fish and Game. The second report, issued a week later, found the number of salmon returning to spawn in the San Joaquin River basin continuing to dwindle, dropping from 5,672 fish in 2006 to 1,158 adult salmon in 2007, according to the environmental consultant FishBio. Over the past seven years, counts on the Stanislaus River have dropped from 8,498 salmon in 2000 to 405 last year. There have been numerous efforts over the past two decades to better balance California's demand for Delta water with the ecological needs of the fish and wildlife species that live there, starting with the 1994 ratification of the Bay-Delta Accord. That agreement committed the state and federal governments to a collaborative process known as Cal-Fed, which funneled hundreds of millions of dollars into ecological restoration projects but failed in its primary — and perhaps unachievable — goals of boosting fish populations while simultaneously improving water quality and stabilizing the export supply. The Cal-Fed accord broke down amid escalating concerns about the failure of the ecosystem investment to produce tangible gains, as well as a growing frustration among urban and agricultural water interests over the lack of progress on increasing water yields from the system. That impasse became starkly visible during the 2007 legislative session, when proposals for bond measures to finance system improvements stalled during bitter arguments between Democrats and Republicans over how much money should be spent on dams and reservoirs, and who should foot the bill. But 2008 is shaping up as the year the logjam may finally be broken, and it has nothing to do with any sudden outbreak of cordiality among the battling parties. Instead, it is more likely to be the result of desperation. In December, U.S. District Court Judge Oliver Wanger finalized an earlier ruling ordering a significant reduction in Delta pumping to protect the threatened Delta smelt. As a result, SWP contractors are likely to lose as much as a third of their allocations this year, coming amid the likely continuation of below-normal precipitation that will further reduce supplies. Lofty rhetoric and good intentions have done little to solve the Delta crisis. But rationing, skyrocketing water bills and thousands of acres of fallowed farmland may just provide the incentive California's leaders need to finally make the hard decisions they've been putting off for nearly 20 years. Resources: Governor's Delta Vision Blue Ribbon Task Force report: http://www.deltavision.ca.gov/ Department of Fish and Game trawl data: http://www.delta.dfg.ca.gov/data/mwt/charts.asp Judge Wanger's decision in Natural Resources Defense Council v. Kempthorne, No. 1:05-cv-01207-OWW-GSA: http://www.earthjustice.org/library/legal_docs/delta-smelt-final-remedy-order.pdf

The California housing market crashed during 2007, and only true optimists and a handful of industry groups predict a turnaround this year. The halcyon days of the housing boom already seem like a long ways away. But while the downturn has reached nearly every corner of the state, some markets are stronger than others. In particular, exurban markets are weak, while urban markets focused on infill development are relatively strong. While the single-family market was starting to slip, multi-family construction held steady during 2006, accounting for 35% of all new housing starts, compared with 26% during 2005. Once the final numbers are in, multi-family units may have accounted for as much as 40% of total housing starts during 2007. According to market analysts, economists and planners, there are number of conclusions to draw, and interesting trends to watch for: • The downturn has been most significant in what had been the fastest-growing locations, mostly on the metropolitan fringes and in the Central Valley. • Construction of multi-family units (condominiums, townhouses and apartments) has not fallen off as sharply as single-family house starts. • Many national homebuilders have bailed out of Central Valley markets that they flooded with new houses as recently as two years ago. These builders are dropping unit prices, selling off land, and not starting new subdivisions. • Small, infill projects continue to go forward with and without government subsidies. • A sharp decline in land prices means that some builders are moving toward much smaller houses that are affordable to first-time buyers. • Entitlement activity is mixed, with some jurisdictions continuing to process as many applications as ever, while other jurisdictions report applications slowing. • The market has slipped little in desirable locations. First, a few important numbers: Housing starts for all of 2007 were about 116,000 units — down nearly 100,000 units from the peak of 2004, according to the California Building Industry Association (CBIA). The median price for single-family and multi-family units in California sank to $402,000 in December 2007, according to DataQuick Information Systems — a drop of 17% in less than one year. December was the slowest month for home sales since most outfits began keeping records. "It's very hard to know how bad this is until we see how far prices are going to drop," said Jed Kolko, an economist with the Public Policy Institute of California. During the recession of the early 1990s, housing prices fell about 20% in the Los Angeles area, he noted. Most of California has not seen a 20% decrease yet, although the California Association of Realtors (CAR) reports prices have dropped approximately 20% in the high desert, the Santa Maria-Lompoc area and the Sacramento region. Interestingly, CAR in October stopped reporting the median price for the San Joaquin Valley, where some builders have taken to auctioning new units. At the same time, prices in Santa Clara, San Mateo, San Francisco and Marin counties have either stayed the same or even increased. "There is a lot of geographic variation," Kolko said. "There are areas that are much harder hit than others." "It's pretty amazing what has happened," said Alan Nevin, chief economist for the CBIA. In the industry group's official 2008 forecast released in early January, Nevin predicted a modest uptick in residential building activity, mostly during the second half of the year. "There is life in spots," Nevin told CP&DR . Downtown San Francisco and San Diego, for example, remain very strong markets, he said. "We're going to see a lot of new, small projects and, from an aesthetic standpoint, I think that's nice," Nevin said. "All of the guys that got fired by the national public builders have decided to become developers on their own, and they have decided to do small, infill condominium projects." These projects are typically four to eight units apiece and are located in coastal urban areas, said Nevin, who pointed to several such projects in San Diego. "The difference," he added, "is total value, because all of these little projects in San Diego don't add up to one big high-rise." While Nevin predicts high-rise condo development will virtually cease in 2008, some jurisdictions — notably Los Angeles , Long Beach and Glendale — have continued to approve new residential towers. In Long Beach, all new housing is an infill or redevelopment project. In the last three months, developers have completed about 300 units, most of which are for-sale condominiums, according to city Planning and Building Director Craig Beck. More than 800 units of affordable housing are scheduled to come online this year, and roughly 400 to 500 more units of housing supported by the city's redevelopment agency are scheduled for construction over the next 12 to 15 months, he said. The demand for affordable units in Long Beach and almost everywhere else appears limitless. Of keen interest to Beck and other observers are two luxury condominium towers developed by Intracorp on Ocean Boulevard in downtown Long Beach. Sales have closed on about three-fourths of a 132-unit tower, which was completed in late 2007, Beck said. Intracorp reports that the second, 114-unit tower is 60% "pre-sold." The second tower is scheduled to be complete in March. "I think they are going to be a very interesting market study," Beck said. Long Beach is currently processing applications for another 3,500 residential units, only about 100 of which are single-family houses, Beck said. However, developers have withdrawn four higher-end downtown condo projects, including Molasky Pacific's proposed Oceanaire project. With towers of 45 and 55 stories, Oceanaire would have been the tallest buildings in Long Beach. In some urban locales, notably the East Bay and the Inland Empire, land prices have dropped dramatically. With lots available for $100,000 less than a year or two ago, builders are able to build 1,500- to 2,000-square-foot "starter" homes, rather than 3,000-square-foot monsters that were needed to recoup land costs, according to CBIA leaders. Nevin predicted that very few builders would pursue large speculative tracts and instead would build on an almost custom basis. "That most certainly in not the M.O. of the major public builders," Nevin said in the CBIA forecast, "but if they want to remain in the state, they will have to adapt to its quirky markets." During the housing slump of the 1990s, state lawmakers passed a measure automatically extending the life of subdivision maps for two years. The CBIA has requested similar legislation this year. The group is also asking lawmakers to pass a measure permitting builders to delay the payment of impact fees until the certificate of occupancy stage, and to streamline environmental review of new housing. Thus far, the Legislature has shown minimal interest in the CBIA agenda, but that could change if the housing slump drags on.

An appellate court has blocked a controversial subdivision at the eastern base of Mt. Whitney because the project's environmental impact report did not adequately consider a potential land swap between the developer and the Bureau of Land Management. The court agreed with project opponents that the EIR lacked details necessary to determine that the land swap was an infeasible project alternative. " his EIR includes only the barest of facts regarding the BLM parcel, vague and unsupported conclusions about aesthetics, views and economic objectives, and no independent analysis whatsoever of relevant considerations," the court ruled. The court rejected opponents' arguments that the EIR's project description was inadequate, and that the study failed to analyze potential impacts on rare species and aesthetics. The project has been a lightening rod since landowner Jim Walker proposed it. In 2004, Walker, a Loma Linda University professor and Sierra Club member, purchased a 125-acre ranch on either side of Whitney Portal Road, roughly four miles west of the Inyo County town of Lone Pine. The ranch is bordered on three sides by public land, and there is no significant development within three miles. Environmentalists called the project "leapfrog development" that would mar a landscape visited by tens of thousands of people every summer. Still, the property is zoned rural residential with 2.5-acre minimum lot sizes. Walker proposed a 27-lot subdivision on 74 acres on the south side of Whitney Portal Road. The Planning Commission certified an EIR for the project and approved the subdivision in May 2005. Two months later, the Board of Supervisors denied an appeal from a group called Save Round Valley Alliance (SVRA) and approved the project. The SVRA sued, arguing that Inyo County failed to comply with the California Environmental Quality Act. Shortly thereafter, Walker and his opponents faced off when Walker began grading the site, apparently without proper permits. Walker halted construction pending a court decision. In May 2006, retired appellate court Justice Harry Brauer, sitting by assignment to Inyo County Superior Court, ruled against SVRA. On appeal, a unanimous three-judge panel of the Fourth District Court of Appeal, Division Two, overturned Brauer on the issue of project alternatives. During the environmental review process, BLM Field Manager Bill Dunkelberger said the agency might be willing to swap a 100-acre parcel adjacent to the Alabama Hills subdivision, about three miles away from Walker's land, for the 74-acre development site. But Dunkelberger worried that it was late in the entitlement process and that Walker was not interested. The final EIR concluded this project alternative was environmentally superior but infeasible. The Fourth District, citing Laurel Heights Improvement Assn. v. Regents of the University of California , (1988) 47 Cal.3d, 376, 404, found that the EIR did not disclose "‘the analytic route the agency traveled from evidence to action.'" The EIR said the land swap alternative was infeasible because the BLM parcel was not designated for residential development, the quality of the BLM parcel was inferior "due to aesthetic/view reasons," and the developer could not achieve the same economic objectives with the BLM parcel as with his own land. The court said the BLM parcel could be rezoned, the conclusion regarding aesthetics was based solely on the developer's input, and the fact that the developer may not make the same amount of money with the BLM parcel was not determinative. "The agency preparing the EIR may not simply accept the project proponent's assertions about an alternative; rather, the agency ‘must independently participate, review, analyze and discuss the alternatives in good faith,'" the court ruled, citing Kings County Farm Bureau v. City of Hanford , (1990) 221 Cal.App.3d, 692, 736. The court added, " here is no evidence or analysis whatsoever of the comparative costs or profitability of developing the two parcels." The county argued that a 1931 federal law blocked BLM from disposing of the parcel in question in order to protect the watershed from which the City of Los Angeles exports water. But the court rejected the argument, noting that the BLM representative said a land exchange was possible and the EIR did not indicate the BLM parcel was unavailable for trade. Project opponents lost three other arguments, the most important of which concerned the EIR's project description. Opponents contended the project description should have treated the subdivision as a 54-unit project because future homeowners could build second units on their lots. All those second units would increase impacts related to runoff, traffic, air quality and public services, environmentalists argued. The court concluded the second units were too speculative to be considered at this stage. " he possibility that future lot owners will or will not build a second unit is extremely uncertain, and any impacts of such second units is highly speculative," the court ruled. The court also determined that the EIR's handling of species and aesthetic impacts was acceptable. The ruling cheered environmentalists, who said they would continue to press for a land swap or even for outright purchase of Walker's land for preservation. Walker, however, said a supplemental EIR would document the infeasibility of the land swap. The Case: Save Round Valley Alliance v. County of Inyo , No. E041364, 07 C.D.O.S. 14412, 2007 DJDAR 18555. Filed December 17, 2007. The Lawyers: For SRVA: Tamara Galanter, Shute, Mihaly & Weinberger, (415) 552-7272. For the county: James S. Reed, Liebersbach, Mohun, Carney & Reed, (760) 934-4558. For the developer: E. Nathan Schilt, Schilt & Heinrich, (909) 558-3355.

Winter and Spring Course Highlights: A Low Impact Design Approach to Storm Water Management Annual Land Use Law Review and Update Annual Water Law Update CEQA Update, Issues and Trends Clean Water Act Section 404: Nationwide and Other Specialized Permits Conjunctive Use of Groundwater and Surface Water Effective Code Enforcement Programs: Development and Implementation Endangered Species Regulation Protection Environmental Issues on the Farm: An Overview of Problems and Solutions for Production Agriculture Environmental Review of California Water Projects: Legal Requirements, Approaches and Techniques GIS Data Development and Integration Green Architecture Green Building Materials and Construction Methods Implementing Planning Law Improving Public Transportation: Principles and Strategies Making Effective Use of Mitigated Negative Declarations Planning for Rural Community Sustainability Planning in California: An Overview and Update Project Planning: Integration of Environmental Permits Role of the Planning Commissioner Surface Mining and Reclamation Act Thresholds of Significance in Environmental Planning Urban Planning Design Studio Urban Site Design Water Resources Planning and Urban Growth For a complete list of course offerings visit www.extension.ucdavis.edu/cpdr . 2008 Spring Conference: Climate Change: A Regional Perspective of a Global Issue This two-day conference will explore how climate change is affecting the environment and what society can do—and is doing—to minimize the negative effects. Experts from the scientific and public health fields, planners, decision makers and water resources professionals will discuss topics such as air quality, transportation, land use planning and the best practices cities and counties have adopted to combat this global issue. Reserve your space today! Click here to learn more or to enroll. http://extension.ucdavis.edu/cpdr

A statewide cap on driving? Here's the thing nobody is quite willing to say out loud about implementing California's climate change law in the land use arena: The state may have to place an overall cap on vehicle miles traveled (VMT), even as it must accommodate more growth. Last Friday at UCLA Extension's annual Land Use Law and Planning Conference , keynote speaker Anthony Eggert , senior policy advisor at the California Air Resources Board, issued what amounted to a plea for help from the 400 land use practitioners gathered in the room. CARB is charged with implementing AB 32. Land use is presumed to be part of the solution , but no specific implementation plan for land use has been adopted. Pinch-hitting for his boss, CARB Chair Mary Nichols , Eggert said it is not clear to CARB how much reduction in greenhouse gas emissions can come from reducing VMT, or from limiting VMT increase on future development projects. Without quite saying that there should be an overall restriction on VMT, he asked the land use practitioners for help in determining what level of greenhouse gas , Eggert said there are three ways to reduce transportation-related greenhouse gases: 1. Regulating vehicles 2. Regulating fuels 3. Changing or reducing vehicle usage as measured by VMT. He acknowledged that it's unlikely that the state will hit the greenhouse gas emissions reduction targets contained in AB 32, the state's climate change bill, without attacking the question of VMT. Like everybody else who's addressed the question in public, Eggerts stopped short of saying that VMT will have to be capped and/or reduced in order to meet the AB 32 target. But he did say that CARB is still working on "the best mix of incentives and requirements" that will limit VMT – or, at least VMT growth – as a way of tackling the greenhouse gas problem. He was not specific about what these carrots and sticks would be, but he did say that CARB supported strengthening the role of regional planning agencies in forcing land use change that will limit VMT. This is essentially the same approach contained in SB 375 (Steinberg), which is likely to be the legislative vehicle that will lay out the way AB 32 will be implemented in the land use arena. Again without being specific, SB 375 calls for regional planning agencies to create a "preferred growth scenario" that would meet AB 32 targets. Most experts believe that land use change must account for 10-15% of greenhouse gas reduction. It's hard to imagine how this would happen without creating a target – or maybe a cap – on VMT in each region around the state as a way of meeting a land use-related greenhouse gas emissions reduction goal. Eggert and other speakers on Friday indicated that more aggressive use of the California Environmental Quality Act is part of the solution , but CEQA analyses are likely to identify how to limit growth in VMT, not how to reduce it. -- Bill Fulton

Can "the Desert" handle a million people? More to the point, can the Palm Springs/Coachella Valley region handle a million people without creating a huge mismatch in jobs and housing that will create a swell of outcommuting from the area into the more job-rich parts of Southern California. At a Lincoln Institute conference in Riverside on Thursday, January 24, John Wohlmuth, executive director of the Coachella Valley Association of Governments , outlined the daunting challenge facing the Palm Springs are in the years ahead. The Coachella Valley has doubled in population since 1990, to more than 400,000 people. It's expected to hit a million people within 25 years. Currently, the Coachella Valley is blessed with with short commutes – some 60% of workers in the area commute 15 minutes or less to work. But that's mostly because the job growth is in low-paying hotel, service and construction jobs. The blue-collar workforce drives from Indio or Coachella to Indian Wells or Palm Desert. The Coachella Valley is among the most inequitable regions of the state, with many high-income retirees and low-income workers But as the population increases – and the indigenous working-class population seeks to increase wages in order to buy houses – where will the workers go for higher-paying jobs? Probably not somewhere in the Coachella Valley.  They'll have to drive to Riverside, Ontario, and beyond for good pay. So there's the dilemma for the Coachella Valley: Low-wage jobs equals less commuting; the desire for higher wage jobs is going to extend the Southern California metropolitan commuting pattern from Moreno Valley out to Beaumont, Palm Springs, and beyond -- Bill Fulton

An initiative that would prevent the use of eminent domain for economic development purposes and ban local rent control laws has qualified for the June ballot. The Howard Jarvis Taxpayers Association and the California Farm Bureau Federation are the primary proponents. In addition, a competing, more limited measure that would prohibit the taking of owner-occupied, single-family houses for economic development has also qualified for the same June ballot. The League of California Cities and the California Redevelopment Association are the primary proponents. The Jarvis group and the Farm Bureau contend that their "California Property Owners and Farmland Protection Act" is a response to the U.S. Supreme Court's Kelo decision that upheld the ability of the government to seize private property for economic purposes. The organizations say the state Legislature's post- Kelo eminent domain reforms — which tightened blight finding requirements and eased the ability to challenge redevelopment decisions — were inadequate (see CP&DR , October 2006 ). "Government should not be able to profit by seizing private property from unwilling sellers for retail or commercial projects," said Sacramento developer Doug Ose, the initiative's campaign finance chairman and a former Republican congressman. Farm Bureau President Doug Mosebar has said that the measure is necessary to prevent government from taking farmland in order to acquire water rights. Local government organizations, affordable housing advocates and environmentalists offer a different view and have started calling the initiative the "hidden agendas scheme." They contend that the measure is so broadly written that it would undermine not only rent control laws, but nearly all state and local laws that seek to protect the rights of tenants. They further argue it would outlaw inclusionary housing ordinances, and might prevent use of eminent domain for water projects. They contend the alternative "Homeowners Protection Act" is a more direct response to Kelo . For opponents of the Jarvis measure, one of the key provisions is a prohibition on "regulation of ownership, occupancy or use of privately owned real property or associated property rights in order to transfer an economic benefit to one or more private persons at the expense of the property owner." The Western Center on Law & Poverty recently produced a 17-page analysis detailing the potential impacts of the initiative. "Whatever the merits of limiting government's right to seize a person's home and transfer it to a developer as the city government did in Kelo , it is difficult to see how invalidating long-standing laws regarding rights of tenants would advance that goal," the analysis states. The Jarvis group has responded in part by drafting an initiative that would prevent organizations funded by local government agency dues from spending money to promote or oppose ballot measures. The initiative is a direct shot at the proponents of the alternative eminent domain initiative. Advocates have until June 9 to collect signatures on "The Taxpayer Protection Act of 2008."

A county cannot employ a development agreement to permit a use not otherwise allowed by zoning, the Fifth District Court of Appeal has ruled. In the first published decision to find a substantive limit to the development agreement law, the court said Tuolumne County could not use a development agreement allowing one agricultural property owner to conduct weddings and other events that are not allowed by the applicable zoning district and county zoning ordinance. The county violated the uniformity requirement in Government Code § 65852, which requires that regulations within a zone be the same, according to the court. The fact that the county used a development agreement did not change the uniformity mandate. "The development agreement law does not authorize cities and counties to create forms of zoning disunity they otherwise lack authority to create," Justice Rebecca Wiseman wrote for the unanimous three-judge panel. Five years ago, Ronald and Lynda Peterson filed an application with the county seeking to use their 37-acre parcel for hosting weddings and similar events. Their property was zoned Exclusive Agriculture, 37-acre minimum (AE-37), a zoning that did not provide for weddings and other commercial events with or without a conditional use permit. Some neighbors submitted opposition letters to the application because of noise and parking concerns. County planners and the Planning Commission recommended denial of the application, and during a September 2003 meeting of the Board of Supervisors, the Petersons withdrew their application. One month later, they submitted a revised application that relied on proposed ordinance amendments that would have permitted weddings, lawn parties and similar outdoor business activities in the AE zoning district. Supervisors declined to approve these amendments, but they did agree to create a special exemption for the Petersons by way of a development agreement approved in July 2005. The ordinance approving the development agreement granted the Petersons the right to have "weddings, retirement or birthday parties, service club functions, and similar activities as conditional uses." At the same time, the board approved a conditional use permit allowing the uses, and a mitigated negative declaration. A group called Neighbors in Support of Appropriate Land Use sued, arguing that the county lacked authority to approve the Petersons' application and violated the California Environmental Quality Act. Tuolumne County Superior Court Judge James Boscoe agreed with the former claim, and he declared the development agreement and conditional use permits void. Judge Boscoe determined the CEQA claim was not ready for judicial review. The county appealed, and the Fifth District upheld the lower court. The question, according to the appellate court, was this: " an a county approve an application to devote a parcel of real property to a use disallowed by the applicable ordinance even though the county does not rezone the property to a district allowing the use, does not amend the text of the zoning ordinance to allow the use in the existing district, does not issue a conditional use permit consistent with the zoning ordinance, and does not grant a variance?" The court's answer was no. "If a zoning scheme is like a contract, the uniformity requirement is like an enforcement clause," Wiseman wrote. "By creating an ad hoc exemption to benefit one parcel in this case — an exception that was not a rezoning or other amendment of the ordinance, not a conditional use permit in conformance with the ordinance, and not a proper variance — the county allowed this ‘contract' to be broken." "Instead," Wiseman summed up, "the county simply let one parcel and property owner off the hook." The county argued that the development agreement law (Government Code § 65864 et seq.) lets development agreements specify uses not allowed by a zoning ordinance, that the county can use the law to permit exceptions, and that a development agreement need not be consistent with zoning ordinances. But the court again emphasized the uniformity requirement. The requirement, the court said, trumped any exceptions to the requirement that the county claimed are contained in the development agreement law. The Case: Neighbors in Support of Appropriate Land Use v. County of Tuolumne , No. F051690, 07 C.D.O.S. 14060, 2007 DJDAR 18104. Filed December 7, 2007. The Lawyers: For Neighbors: J. William Yeates, Kenyon Yeates, (916) 609-5000. For the county: A. Paul Griebel, county counsel's office, (209) 533-5517.

Sacramento may be flooded with red ink these days – after all, the state's grappling with a $14 billion budget deficit – but that's not the only immersion the locals are talking about. As the feds get tougher about flood hazards, should the city go back to living on stilts, as it did in the old days? California's capital city is one of the most flood-prone metro areas in the nation – and Sac-town's characteristic state of denial got harder to maintain last week, when the Federal Emergency Management Agency announced it would designate the Natomas area as a flood hazard zone. That designation – long forestalled by the efforts of Sacramento's congressional delegation – will require residents to get flood insurance and could well force a de facto building moratorium . Mayor Heather Fargo, who's currently running unopposed for re-election, has been complaining about FEMA and as a result is getting hammered in the local paper for supposedly putting the city's development plans over public safety. Congresswoman Doris Matsui has said she's not going to try to overturn FEMA – something Bob Matsui, her predecessor and late husband, did successfully back in the ‘80s. There's no doubt that the FEMA move puts Sacramento in a tough position. Located on the north side of the American River, between downtown Sacramento and Sacramento International Airport, Natomas is just about the last undeveloped area in the City of Sacramento. It's the home of Arco Arena, where the Sacramento Kings basketball team plays. Development was held up for many years in the 1990s because of flood concerns but in the recent housing boom it's been a cash cow for Sacramento developers, and the city. During recent years, about half of the new housing in Sacramento has been built in Natomas, and a lot more development is in the pipeline . So what's a flood-prone city to do? Maybe Sacramentans should go back to building houses the way they used to – and, apparently, the way their Delta neighbors are beginning to do again. Back in the 19th Century, most Sacramento houses were built on the assumption that the ground floor would flood sooner or later. Sure, there was a ground floor. But the main floor was actually the second storey, and the main entrance was a stairway from the street up to the second floor. Many of these old houses still exist , especially in the Midtown neighborhood of Sacramento. Should the flood-prone Sacramento area go back to building houses that start on the second floor? Actually, it's already happening. One of the standard infill housing types throughout California today is the tall, skinny three-story residence (either a townhome or a Although they look odd , these new houses with raised living spaces in Isleton may provide a model for flood-prone Sacramento. single-family house designed like a townhome) with a garage on the ground floor and living space on the second and third floor. It's practically infill on stilts. I've seen these projects all over the place. There's one about a block from our office in Downtown Ventura. But the flood-resistant nature of this particular housing type didn't really strike me until Saturday, when I stopped by the Delta town of Isleton – 30 or so miles down the Sacramento River south of the capital – and checked out the first new subdivision built in the city in something like 80 years. The old Delta cities in this area – Isleton, Walnut Grove, Locke – are tightly laid out in the late 19th Century style, and they're separated from the river by a major levee, which doubles as a road. In Walnut Grove, some of the buildings have a ground floor that fronts on a downtown street and a second storey that fronts on the levee road. But this new development is something … um … different , as this photo taken by Allison Joe suggests. I'm not sure whether Isleton actually required Renovo Communities to use the first-floor garage approach for the 331-unit "Village on the Delta" . But all the models included in the subdivision are three stories with garage on the bottom. Weird-lookin'? Yeah. But flood-proof for sure! So maybe Mayor Fargo could blunt some of the criticism she's been getting by adopting the Isleton approach. After all, does it really matter if you car floods – so long as your living space is high and dry? -- Bill Fulton

In almost shockingly candid interview with the Los Angeles Times , Gov. Arnold Schwarzenegger concedes that his earlier answers for solving the state's budget and governance problems were based on his poor understanding of the problems and the system. You might recall the 2003 recall campaign, when Schwarzenegger said he could solve the state's budget problems simply by eliminating "waste, fraud and abuse." He now says these things are not a factor in the state's projected $14.5 billion budget deficit. The governor also has changed his mind on term limits. Here's what the former term limits supporter has to say now: "The special interests and lobbyists up there are so much more sophisticated and so much more advanced than the politicians are. ... So who is it really helping? I am seeing this firsthand. The people I finally got used to working with now will be kicked out." What is most remarkable to me is not Schwarzenegger's new positions, but his willingness to admit publicly that governing California is not the piece of cake that he said it would be. Long-time Sacramento insiders and observers might respond, "No kidding." You can read the full interview here . - Paul Shigley

The Humboldt County district attorney cannot sue Pacific Lumber Company for allegedly submitting false information during the state's processing of an environmental impact report and sustainable logging plan, the First District Court of Appeal has ruled. The court ruled that the district attorney's lawsuit was blocked by a section of the state Civil Code and by the Noerr-Pennington doctrine, which protects lobbying and petitioning activities. The court did not rule on the legitimacy of Pacific Lumber's allegedly fraudulent statements. Pacific Lumber Company has been involved in an enormous amount of litigation since financier Charles Hurwitz acquired the logging company in 1986. (The company is currently in bankruptcy proceedings in Texas. See CP&DR Environment Watch , November 2007.) However, the suit filed by Humboldt County District Attorney Paul Gallegos in early 2003 was different. Gallegos contended that Pacific Lumber submitted false information downplaying the potential for logging to cause landslides in the Bear Creek, Elk River and Jordan Creek watersheds. The California Department of Forestry and Fire Protection (CDF) relied on this information to certify an EIR and approve a "sustained yield plan" that permitted logging, according to county prosecutors. They sought a civil penalty of $2,500 for every illegally harvested tree, or about $250 million all together. Even though Humboldt County has been the scene of logging protests and litigation for many years, the district attorney's suit appeared to take the controversy to a higher level. Pacific Lumber poured $300,000 into an effort to recall Gallegos, who was first elected in 2002, but 61% of voters backed the district attorney in a March 2004 recall election. While it lost in the political realm, Pacific Lumber had much better success in court. In May 2004, Humboldt County Superior Court Judge Christopher Wilson rejected the prosecutor's request to prohibit Pacific Lumber timber harvesting, but he allowed the district attorney to amend the lawsuit. Gallegos did so, but Superior Court Judge Richard Freeborn ruled in June 2005 that the company was immune from the lawsuit. The district attorney appealed, but a unanimous three-judge panel of the First District upheld the lower court. The trial court ruled that Civil Code § 47, subdivision (b) provides absolute immunity to communications made as part of a judicial or quasi-judicial proceeding. The idea is that citizens should be able to communicate with government agencies without fear of litigation over what they say. "Pacific Lumber's communications, whether fraudulent or not, fall squarely within the scope of the litigation privilege," wrote Alameda County Superior Court Judge Jeffrey Horner, sitting by assignment to the First District. The district attorney argued that § 47(b) was inapplicable because his lawsuit was brought under the Unfair Competition Law (Business and Professions Code § 17200 et seq. ). The Unfair Competition Law forbids "any unlawful, unfair or fraudulent business act or practice." The district attorney contended that Pacific Lumber's actions were fraudulent because the company submitted false information after the close of the 90-day public review period, and then submitted a correction at the last minute to the wrong government office. The First District, however, found that the § 47(b) immunity does not "evaporate merely because the plaintiff discovers a conveniently different label for pleading what is in substance an identical grievance arising from identical conduct as that protected by § 47(b)." The federal Noerr-Pennington Doctrine provides similar immunity for any petitioning activities before the courts and government agencies. But there is a "sham exemption" to Noerr-Pennington. The district attorney argued that Pacific Lumber's activities fell into an area covered by the sham exemption. The First District disagreed. For the sham exemption to apply, Pacific Lumber had to believe that there was no way it could prevail in the government process, and that it was using the government process to interfere with a competitor. Neither was the case here, the court found. Not only did Pacific Lumber believe it could prevail, it in fact did, the court noted. " ven if we were to recognize an expansion of the sham exemption for fraudulent conduct in adjudicatory proceedings," Horner added, "we would nonetheless conclude that the fraudulent conduct alleged here is not actionable because the state has failed to adequately allege that it deprived the CEQA proceedings of legitimacy." Besides, the court noted, CDF adopted a restrictive logging plan as a result of the CEQA process. Only after intense lobbying by Pacific Lumber in early 1999 did CDF modify the plan to permit more logging — and that is the plan of which the district attorney complains. Pacific Lumber's lobbying is "a classic form of political expression" that is immune from liability under Noerr-Pennington, the court concluded. After the decision came down, District Attorney Gallegos said he disagreed with the ruling but probably would not seek state Supreme Court review. That does not mean, however, Pacific Lumber is in the clear. In 2007, former CDF Director Richard Wilson and former CDF forestry regulator Chris Maranto filed a whistle-blower lawsuit that alleged a computer model used to support Pacific Lumber's logging plan was intentionally flawed to exaggerate the rate of tree regeneration. In addition, the state Supreme Court currently is considering an environmental group's challenge of the sustained yield plan, the EIR and a habitat conservation plan. That case is Environmental Protection Information Center v. California Department of Forestry and Fire Protection , No. S140547 (see CP&DR Legal Digest , May 2006; Environment Watch , March 2006). That state Supreme Court case has been extensively briefed, but no date for oral argument has been set. The Case: People v. The Pacific Lumber Co. , No. A112028, 2008 DJDAR 361. Filed January 10, 2008. The Lawyers; For the People: Christa McKimmy, Humboldt County district attorney's office, (707) 445-7411. For Pacific Lumber: Edgar Washburn, Morrison & Foerster, (415) 268-7860.

Jerry Brown likes to do the unexpected. So it should not have been surprising that Brown turned up unannounced at the Planning and Conservation League's annual symposium on Saturday, January 12, in Sacramento and vowed to sue cities and counties that do not account for climate change in their next general plan. Brown insisted that the California Environmental Quality Act (CEQA) requires local governments to consider how land-use plans and development projects could contribute to climate change. And he warned that attorneys in his office are reviewing and commenting on environmental impact reports for the plans and projects. "My office is looking, and we're going to send you a comment. And you should look at it or we're going to sue you," Brown said to any local government official who may have been in the audience of about 250 people. The former governor conceded that he could not litigate all of the 120 general plans that currently are in some stage of update or "they'll run me out of town." Rather, he said, "We're looking at people who are flagrant, egregious and vulnerable." Brown was not even listed on the symposium's program. Lunch was billed as a talk about water by PCL Executive Director Gary Patton. Instead, Brown walked into the room just as servers were distributing plates of vegetarian lasagna, and he proceeded to steal the show with his usual mix of bold statements, self-righteousness and self-depreciating humor. Brown made headlines last year when he sued San Bernardino County over that county's failure to adequately address climate change in a comprehensive general plan update. Brown settled the lawsuit months later when the county agreed to adopt a policy that outlines ways to reduce greenhouse gas emissions attributable to discretionary land use decisions, and to prepare a greenhouse gas reduction plan with targets through 2020 and mitigation measures. On Saturday, Brown said his office also is focusing on regional growth blueprints adopted by councils of government. Brown said he has learned that global warming is not at the top of COGs' agendas, but said he believes it should be. These blueprints need to be far more aggressive, and then cities need to implement the plans, he said. The friendly crowd gave Brown a standing ovation for his blunt, rambling and often humorous lunchtime speech. "Every time you applaud, that's one more lawsuit I will file," Brown joked as he left the stage. Of course, there are alternative viewpoints. Unfortunately, not everyone who cheered Brown's speech heard attorney Stephen Kostka, co-author of Practice Under the California Environmental Quality Ac t, provide a counter-argument. During a breakout panel discussion after lunch, Kostka said people expect land use planning to provide more greenhouse gas emission reductions than is likely. For decades, planning and zoning emphasized exclusion, which caused the type of development that people now decry. "I'm not sure how far you can roll the film backwards," Kostka said. It is only an assumption that new development will increase greenhouse gas emissions, said Kostka, who frequently represents the building industry and developers. Most new buildings are far more energy-efficient than old ones, he noted. And, he asked, how do you prove that residents of a new development will drive more than they would have had the development not been built? Kostka conceded that planners must consider the consequences of plans, but he argued that CEQA is the wrong tool for addressing the issue. Land development does not cause greenhouse gas emissions; it's economic growth, population growth and human activity that cause the emissions, he contended. Kostka drew a rebuttal from fellow panel member Terry Roberts, who heads the CEQA clearinghouse in the Governor's Office of Planning and Research. She said the greenhouse gas reduction law passed in 2006 (AB 32) and last year's AB 97 make clear that climate change is a CEQA issue, even if CEQA is not the ideal tool. What's most important is not who's right and who's wrong, but the speed at which climate change has taken over the agenda. Yes, the PCL event was packed with greenies. But not even many of them were talking about this stuff as recently as two or three years ago. Now, it's all that anyone talks about. Concern about climate change is the reason that green building is becoming commonplace. And it's one of the big reasons the post-war suburban growth model is falling out of favor . The conversation has changed. As Jerry Brown noted, Arnold Schwarzenegger has made it permissible even for Republicans to talk about climate change. Planners have a new issue , and this one appears to have all the political traction in the world. - Paul Shigley