A county airport land use commission may not exempt a specific plan adopted by a city or county from compatibility standards for development in the vicinity of an airport, according to a state attorney general’s opinion. The opinion written by Deputy Attorney General Daniel Stone was prepared at the request of Riverside County Counsel William Katzenstein. During the 1980s and early 1990s, Riverside County and some cities adopted a host of specific plans for territory around airports in French Valley, Hemet and Corona, explained Deputy County Counsel B.T. Miller, who advises the airport commission. When state legislation required county commissions to adopt compatibility standards for land use and development intensity in the vicinity of airports, the Riverside County commission approved compatibility plans that exempted the existing specific plans. As development proposals were submitted in compliance with those specific plans, the proposals were not held to the compatibility standards, Miller said. In time, conflicts began to arise, especially around the airport in French Valley, an unincorporated community east of Murrieta that is the location of large-scale residential development plans. Also, membership of the commission turned over, and the county began providing more professional staff assistance. The new people did not want to continue the practice of exempting development from the compatibility standards, and the new folks wanted to prepare new standards that eliminated the exemptions. Miller said that the county counsel’s office had begun advising the commission that the exemptions were not legal. To firm up its position, the county sought the attorney general’s advice. “In some ways, it’s an obvious opinion,” Miller said of the attorney general’s opinion. “But sometimes it’s important to state the obvious.” The state law at issue is the State Aeronautics Act (Public Utilities Code §§ 21001-21707). The act requires a county airport commission to formulate an airport land use compatibility plan that addresses land use issues and minimizes the public’s exposure to noise and safety hazards. According to the attorney general’s opinion, § 21676 “provides a detailed procedure for resolving conflicts between a specific plan … and an airport land use compatibility plan.” If the commission finds an inconsistency, it must notify the city or county that adopted the specific plan. The city or county may then overrule the airport commission, but only with a two-thirds vote and only if the city or county can make findings that the specific plan is consistent with the state law’s goal of minimizing the public’s exposure to noise and safety hazards. If the city or county does not either follow this procedure or amend its land use policies in question, an airport commission may require the city or county to submit “all subsequent actions, regulations, and permits to the commission for review,” according to the attorney general’s opinion, which cites § 21676.5, subdivision (a). “In light of the elaborate procedures set forth in § 21676 and § 21676.5 for identifying and resolving inconsistencies between a specific plan and an airport land use compatibility plan, it is apparent that the Legislature did not intend or authorize a commission to grant ‘exemptions’ for a specific plan with less stringent standards than a compatibility plan,” Deputy Attorney General Stone wrote. “Instead, the act contemplates that, in the event of such a conflict, certain steps will be taken to achieve the act’s overall objectives, including possible review by the commission of ‘all subsequent actions’ taken by the city or county.” As for Riverside County specifically, Stone wrote, “Not only would the exemption in question be inconsistent with the act’s provisions and without authorization, it would be in conflict with the act’s purposes.” Since the attorney general issued the opinion, the Los Angeles County Airport Land Use Commission has risen from obscurity to question Mayor James Hahn’s plan for Los Angeles International Airport, suggesting that Hahn’s plan would expose the public to excessive noise and safety risks. The attorney general’s opinion is No. 03-805 and was filed July 22, 2004. It may be found at 04 C.D.O.S. 6645 or 2004 DJDAR 9081.

The 2003-04 legislative session has closed with the passage of dozens of mostly minor land use bills, and the failure of dozens of others. Still, lawmakers did pass a bipartisan measure creating a new Sierra Nevada Conservancy, and they continued to hammer on local governments about affordable housing development. The Legislature approved a number of brownfields, infill and housing bills that could fall under the definition of “smart growth.” Lawmakers also moved to protect natural resources, ranging from oak woodlands to Sacramento-San Joaquin Delta farmland to the ocean. Money measures went nowhere during the two-year session. Proposed state bonds for items such as transportation and other infrastructure barely received a hearing. Bills that sought to lower the voter threshold for approval of local tax increases found no favor. And, with a few exceptions, bills and constitutional amendments that sought to reform the state-local fiscal relationship also died with no fanfare during a legislative session marked by huge state budget deficits. Broad policy initiatives in any area of land use were absent again during this two-year session, in part because the Schwarzenegger administration never asserted itself on the subject. Many people expect that to change next year. Creation of the Sierra Nevada Conservancy might be — literally — the most far-reaching bill passed this year, as the jurisdiction of the proposed Conservancy would stretch from the foothills outside Bakersfield to the Oregon border. Under AB 2600, the Conservancy would be something of a conduit for state and federal funding to the region. In fact, the state budget for 2004-05 already contains $4 million for the Conservancy. The bill was the culmination of at least five years of background work by the Sierra Business Council and other advocates (see , May 2004). The bill is remarkable in part because it was co-authored by Democratic Assembly John Laird of Santa Cruz and Republican Assemblyman Tim Leslie, who represents a largely rural and conservative district in the mountains. Resources Agency Secretary Mike Chrisman has endorsed AB 2600, and the governor’s signature is expected. The Conservancy itself will not be able to acquire land, but it may acquire easements and it may provide money to nonprofit entities or local governments for the purpose of buying land. Republican Leslie demanded the provision prohibiting land acquisition, which would make this Conservancy different from its eight counterparts statewide. Environmentalists were willing to concede that in exchange for including more territory in the Conservancy’s jurisdiction. The agency’s territory would encompass everything related to the Sierra, from blue oak woodlands on the edge of the Central Valley to the dusty valleys on the east side of the mountain range, as well as all of the major watersheds. “Watersheds are the most basic ecological unit around which to organize services,” said Elizabeth Martin, a lobbyist for a foundation called the Sierra Fund, who noted that county lines often run down the middle of rivers. “The larger unit of management reflects how the Sierra is plumbed and how wildlife moves around.” Property rights advocates and counties themselves are mixed on the idea. They complain that a Conservancy would be another layer of government and would tie up more land in a region that is already mostly in the hands of the government. But Martin and other backers contend that design of the proposed Conservancy places great emphasis on local needs and desires. Six county supervisors will sit on the conservancy’s 13-member board, and the fact that the agency will not be able to buy land means that it must work with local governments and local land trusts, Martin said. There is no regulatory scheme, she pointed out. A different proposal to encourage natural resources conservation — this one for the Sacramento-San Joaquin Delta — was not approved this year, partly because of its proposed regulatory scheme. Instead, lawmakers approved a bill to modestly beef up the role of the existing Delta Protection Commission (AB 2476-Wolk). They also approved a new program (SB 86-Machado) that provides financial incentives to Delta landowners who manage their land to protect natural and agricultural resources. Senate Bill 86 was a reaction to an earlier version of AB 2476, which could have given the Delta Protection Commission a much greater role in fringe urbanization issues and farmland conversion (see , June 2004). If Schwarzenegger signs SB 86, the Coastal Conservancy would run the new program. “It allows the Delta to access the Conservancy’s expertise without having to invent a new agency,” said William Geyer, a lobbyist for Delta landowners. They backed the concept because it could provide annual payments to them based on their management practices, rather than a one-time payment for an agricultural or open space easement. In the area of housing, the two highest-profile bills were SB 1818 (Hollingsworth) and AB 2702 (Steinberg). Affordable housing advocates, the California Association of Realtors and some development interests backed both bills, while the League of California Cities, the California State Association of Counties (CSAC) and the California Chapter of the American Planning Association opposed both measures. Under the existing law, a city or county must provide a 25% density bonus to a developer who provides a certain percentage of units for low- or moderate-income residents or seniors. Senate Bill 1818 has three major provisions: It gives builders a greater density bonus for donating land to a nonprofit entity or local government for the construction of affordable housing; it sets a range of bonuses from 20% to 35% depending on the amount and type of affordable or senior units provided; and it lets a developer select three incentives, such as relaxed parking standards or smaller setbacks. Assembly Bill 2702 builds on a law approved two years ago that requires local governments to handle applications for second dwelling units ministerially. The new bill would prohibit cities and counties from establishing perpetual occupancy rules, mandating units smaller than 550 square feet, requiring covered parking or establishing minimum lot sizes greater than double the size of the primary residence. Affordable housing lobbyist Marc Brown said the negative reaction of some cities to the 2002 legislation was behind the latest bill. “If these cities had not gone off the deep end and tried to undercut all of this stuff, we would not have been back with new legislation this year,” Brown said. He said that, under AB 2702, cities and counties still have the authority ban second units outright, limit them to certain areas and restrict their numbers geographically. But local government representatives fought both bills as intrusions into local rule. “They weren’t able to substantiate the problems that they were using as a basis for AB 2702,” said CSAC Lobbyist DeAnn Baker, who complained that the bill invites rental duplexes into single-family neighborhoods. “There are unintended consequences when you get that prescriptive in state law. There could be a lot of backlash to second units.” In a letter to the Sacramento Bee, California Association of Realtors President Ann Pettijohn charged local governments with “engaging in scare tactics.” That prompted League of California Cities Lobbyist Daniel Carrigg to respond: “Rather than seeking changes to local ordinances in city halls and chambers of county supervisors — where the affected residents can engage in the debate — the Realtors are attempting to use the Legislature to mandate their views statewide.” Interestingly, Republicans played a major role in both affordable housing bills. Senate Bill 1818 was carried by Republican Sen. Dennis Hollingsworth of Murrieta, and Republicans provided the necessary votes for approval of AB 2702. The interest among legislative Republicans in housing, combined with the Republican Schwarzenegger administration’s known support for housing development, could provide affordable housing advocates with some important allies during the next legislative session, which begins in December.

Is a proposed high-density project in Redwood City an example of smart growth, or a gridlock-inducing suburban nightmare? That is the question voters will answer in November, when they vote on whether to allow 17 high-rise towers to be built along the city’s San Francisco Bay waterfront. The upward thrust of the Marina Shores Village — the towers would range between 15 and 21 stories high, with 2.8 million square feet of residential space, along with offices and retail — is unprecedented in the suburban Bay Area. In the region, only San Francisco has more high-rise buildings. But without San Francisco’s transit infrastructure, the $1 billion project has opponents who predict it will lead to traffic gridlock on Highway 101, which is already jammed with commute traffic. “Smart growth” often means high density development built around mass transit, but in this case the mass transit — in the form of the Caltrain commuter train — is across the freeway and its crowded intersections from the development site. Marina Shores Village sits next to the Bayshore Freeway and along Redwood Creek, which turns into San Francisco Bay. The project would be carved out of two boat marinas.. Developer Glenborough-Pauls LLC plans to run six daily shuttle buses from the village to the Redwood City Caltrain station. But Redwood City environmentalist Ralph Nobles thinks the shuttles are not enough to reduce the congestion. “What this means is you’ll have someone to talk to while you’re stuck in traffic,” Nobles said. Paul Powers, president of Pauls Corporation, which is a partner with the Denver-based Glenborough REIT in building Marina Shores Village, said the project will provide housing to local workers who want to live close to their jobs. He estimated the approximately 3,900 residents of Marina Shores will live within three miles of 30,000 to 50,000 jobs. The largest employer in the city is Oracle, which has between 6,000 and 7,000 workers at its headquarters near the Marina Shores Village project site. Powers also expects local residents to move to the new development as they downsize from houses. “We will take cars off of 101,” Powers said. A group called People for Housing Not High-Rises was able to gather more than 3,600 signatures to force a referendum on the project one month after the Redwood City council approved the project and raised the allowable height limits from 75 feet to 240 feet. The project is unusually large for suburban San Mateo County, which has little easily developable land remaining. A total of 1,930 condominiums and townhomes are proposed to be built in phases over a 20-year period at Marina Shores Village. Powers said the project has “tremendous support from people who want to do away with urban sprawl.” Among those endorsing the project is the Silicon Valley Manufacturing Group (SVMG), an influential business group that, among other things, lobbies for housing development in the area. “Traffic is always an issue in any kind of infill proposal,” said Shiloh Ballard, SVMG’s director of housing and community development. “If you don’t put the homes here, folks are going to commute from somewhere else.” Water, however, could be a problem. Currently, Redwood City uses more water than it is allocated by the Hetch Hetchy project, and there is no guarantee of water for Marina Shores Village. With each phase of the project, a consultant funded by the developer but working for the city would study the water situation and determine if supplies are adequate for construction to go forward, according to Tom Passinisi, the city’s acting planning director. The city has no new water sources, although the developer could purchase someone else’s water supply, Passinisi said. Developer Powers noted that the city plans to begin recycling wastewater to make up for the shortfall. City planner Mike Church said earlier plans for the project called for more towers at a lower height. But Powers said lowering the towers further would not leave enough land for all the improvements planned for the area. The development is expected to receive approval from the Bay Conservation and Development Commission, which has jurisdiction over development on the bay and 100 feet around it, according to Will Travis, the commission’s executive director. “Generally, high rise development along the waterfront is not something we’re opposed to if it has adequate public access,” he said. Marina Shores is proposed to have 6.8 acres of new parks, as well as marinas and access to open space. The project also would have public walkways on all areas along the water, and the developers plan to build trails and a pedestrian/bicyclist undercrossing beneath Highway 101. Altogether, the developers have promised 97 units of affordable housing for very low-income families making between $33,000 and $42,000, and 193 units for those making $80,000 to $102,000 a year, a moderate income in San Mateo County. The rest of the units would be sold at market prices. Two-bedroom condominiums in the nearby Redwood Shores neighborhood of Redwood City sell for approximately $450,000. But the developers may not place the 97 units of very low-income housing on the site, noted Nobles, who is a former city planning commissioner. A city report acknowledges that the very low-income units may be built offsite. More than 20 unmitigated impacts were identified in the project’s environmental impact report, mostly related to traffic. Loss of views from Redwood City and from the neighboring cities of San Carlos and Belmont is also identified as an unmitigated environmental impact. Nobles said additional unmitigated impacts of the project include effects on a nearby wildlife refuge and conflicts with planes at the nearby San Carlos Airport, which lies one mile away. But Powers said the Federal Aviation Administration has approved the project. Nobles, 84, was a leader in a 1982 referendum in Redwood City to prevent development of Bair Island, an open space area adjacent to Marina Village. That land was bought by the federal government and is now protected open space. The 1982 ballot measure won by less than 50 votes out of approximately 20,000. “This election will not be that close,” Nobles predicted. Powers refused to speculate about the project’s future should it be rejected. “We’ll cross that bridge when we come to it,” he said. Contacts: Paul Powers, Pauls Corporation, (650) 369-8651. Mike Church, Redwood City Planning and Redevelopment Agency, (650) 780-7237. Will Travis, Bay Conservation and Development Commission, (415) 352-3653. People for Housing Not High-Rises: www.housingnothighrises.org

Fighting over water is a popular sport in the West, where generations of lawyers have refined the practice until it approaches an art. Often, the quantities at stake are prodigious, the output of entire watersheds. In other instances, however, the volume is so minuscule as to leave outsiders puzzled by all the fuss. A dispute of the latter sort is threatening to break out in Ventura County, where an unusually broad coalition of interests has united behind one of the largest dam-removal projects in American history. As federal, state and local agencies press forward with environmental review and demolition planning, a handful of opposing voices have strained to make themselves heard. Having failed so far to secure the guarantees they desire, they have begun offering thinly veiled threats of legal action to stop the project or at least delay it — a move that could prove fatal to critical funding. The dispute is an illustration that, in California, there is no such thing as a trivial amount of water, and that even the most marginal dams have their defenders. Matilija Dam, completed in 1948 in a rugged canyon 16 miles north of Ventura, was envisioned as a means of providing flood control to a handful of small downstream communities and recharging groundwater supplies used by farmers in the sparsely populated Ojai Valley. With so few potential beneficiaries, the dam had such a dismal cost-benefit ratio that no state or federal agency could be persuaded to build it. Undaunted, the dam’s backers persuaded local voters to pass a bond measure to provide funding, and the county flood control district tackled the task. Problems were apparent nearly from the start. Cracks began appearing on the downstream face of the dam almost immediately after completion, and they worsened over time. A 1959 survey revealed that the dam’s crest was tilting upstream, probably because a chemical reaction between alkali in the cement and silica in the aggregate used in the concrete was causing it to expand and deteriorate. Concerned about the dam’s safety, the county twice had the dam’s crest notched to lower it and reduce stress on the foundation. The dam originally was 198 feet tall; subsequent modifications lowered it 30 feet. Bad concrete was not Matilija Dam’s only flaw. The mountains surrounding it are rising rapidly and eroding nearly as rapidly, producing huge amounts of debris. Matilija’s 7,000-acre-foot reservoir first filled with water in 1952. But it also had begun filling with sediment — about 79 acre-feet a year, according to a 1954 report by the U.S. Bureau of Reclamation (BOR). By 1969, the reservoir’s storage capacity had been cut in half. According to the BOR, the dam now traps 6 million cubic yards of sediment, the equivalent of 14 Rose Bowl stadiums full of sand, silt, gravel and cobbles. The reservoir has a storage capacity of about 500 acre-feet and provides no flood control, although it does provide a trickle of water to supplement the supply of the Ojai area’s main water provider, the Casitas Municipal Water District (CMWD). The dam contributes to beach erosion by trapping sand that would otherwise reach the coast, and blocks access to critical spawning grounds for endangered southern steelhead in the Ventura River watershed. Efforts to demolish the dam and restore the ecosystem have been under way since 1998, when local advocates secured federal support for a feasibility study. Strategies for taking out the dam and dealing with the sediment behind it are detailed in a technical analysis released in June and are examined further in a draft EIR/EIS released in July, opening a pubic-comment period that closed August 30. Almost simultaneously, local lawmakers announced that $79 million in federal funding for the $110 million project had survived committee scrutiny in Congress and made it into this year’s federal Water Resources Development Act. The Army Corps of Engineers is the lead agency under the National Environmental Policy Act (NEPA). The Ventura County Watershed Protection Agency (former the county flood control district) is the lead agency under the California Environmental Quality Act (CEQA). A final record of decision on the project is expected by the end of the year. Dealing with the trapped sediment is the most costly aspect of the project. There is too much to haul away, and allowing it to be eroded naturally by storm flows after the dam is gone would cause the lower river to be buried beneath debris, smothering habitat and increasing the flood risk. Under the preferred alternative, the fine silt would be dredged out, transported downstream in a slurry line and piled up outside the main river channel. The remaining coarse sediments would be stabilized temporarily in the old reservoir site in such a way that extremely high flows would erode them gradually and carry them downstream. Legislative support reflects the extremely broad coalition of interests united in support of the removal project, including virtually every federal, state and local agency with an interest in the dam or in steelhead, as well as a lengthy roster of environmental groups. At a July 28 public hearing on the draft EIR/EIS, however, representatives of CMWD and some small rural water agencies complained that the document fails to address the effect of the dam removal on their water supply. And at least one of those representatives argued that this failure left the document open to challenge under CEQA and NEPA — a hint of litigation to come. He may have a point: The EIR/EIS acknowledges a potential temporary reduction in supply as a consequence of the project., but vaguely waves off the impact by noting that replacement water could be purchased from the State Water Project or “obtained from other sources” — the kind of “paper water” assurances California judges increasingly seem disinclined to tolerate. In a state where individual farms consume thousands of acre-feet a year, the amount of water at stake seems trivial. The Casitas district has a lease with the dam’s owner, the Ventura County Watershed Protection District, to store water behind the dam. That water is dribbled through the dam’s outlet works into the river channel after winter’s peak flows have subsided, allowing it to be diverted downstream by CMWD. According to the BOR, Matilija Dam adds an average of 590 acre-feet a year to the local water supply. Casitas provides conflicting estimates. In a July 20 letter to the editor of the local newspaper, the agency’s board president asserted that Matilija reservoir provides “about 600 acre-feet of water.” A July 21 press release from the district asserts that removal of the dam could cause the district’s customers to lose 2,400 acre-feet. In a more recent press release, the district claims Matilija yields 790 acre-feet of water a year, a figure repeated in a recent interview with Casitas General Manager John Johnson. Regardless of which figure is correct, Mother nature has ideas of her own. Continuing sediment deposition, the EIR/EIS warns, will reduce Matilija Reservoir’s capacity to 150 acre-feet by 2010 and less than 50 acre-feet by 2020. Even before sedimentation eliminates the reservoir, the water district will lose access to it. The district’s lease with the dam’s owner expires on Jan. 1, 2009 — about the same time the dam would start to come down, if the project moves forward. And it is unlikely the county will be interested in renewing that lease, as it is spearheading the removal process. Contacts: John Johnson, Casitas Municipal Water District, (805) 649-2251. Jeff Pratt, Ventura County Watershed Protection District, (805) 654-2001. Draft dam removal EIR/EIS: www.matilijadam.org/public-report.htm

Two recent appellate court rulings appear to have clarified aspects of the California Environmental Quality Act and may have even broken new legal ground. One case involved the project description in an environmental impact report and in public notices. The court held that the identity of the proposed project’s end user did not have to be disclosed. The other case contained a lengthy discussion about how to address a proposed project’s impact on a community’s jobs-housing ratio. In that case, the court offered deference the city’s handling of the issue and provided guidance to other jurisdictions that address jobs-housing ratios in environmental studies. The first case was from the Town of Apple Valley, in San Bernardino County’s high desert. In October 2001, Pluto Development submitted an application for a 1.2-million-square-foot distribution center on 300 acres at the corner of Dale Evans Parkway and Johnson Road. Eight months later, the City Council certified an EIR for the project, adopted a statement of overriding considerations because seven environmental impacts could not be fully mitigated, and approved the project. In July 2002, a group called Maintain Our Desert Environment (MODE) sued the city for failing to comply with CEQA. San Bernardino Superior Court Judge John Wade halted construction of the project briefly, but ultimately he ruled for the city. MODE appealed, but a unanimous three-judge panel of the Fourth District Court of Appeal, Division Two, upheld the lower court. Two key issues in the case were tied together: Whether the project opponents had exhausted their administrative remedies, and the adequacy of the project description. The environmental documents did not identify who would use the distribution center. In fact, Pluto Development is simply an arm of Wal-Mart. MODE and the state attorney general argued that public notices and the EIR’s project description were incomplete and misleading because they did not identify Wal-Mart as the user of the proposed facility. “Not a lot of people knew what was going on until after the fact,” explained Raymond Johnson, MODE’s attorney. He contended that the city hid Wal-Mart’s identity to minimize public comment. And, because fewer issues had been raised during the administrative process, MODE had fewer issues to pursue in court because the group could not litigate over issues that were not part of the administrative review. But the court ruled that the project description passed muster under CEQA. The statute requires public notices to contain a “brief description of the proposed project.” “The key word here is ‘brief,’” Presiding Justice Manuel Ramirez wrote for the court. “ n choosing to use that word, the Legislature suggested that the project description contained in the public notice need not be as extensive as the description in the EIR itself, but need only be a brief, compact summary without elaboration or detail.” The attorney general argued that the project description in the EIR itself was inaccurate because it identified Pluto, and not Wal-Mart, as the project proponent. “That argument fails to note the difference between a project proponent/developer and a project user/tenant,” Ramirez wrote. “If CEQA was to be interpreted as the attorney general suggests, no such projects could ever proceed until all potential users/tenants were identified and subsequently investigated by the lead agency. In addition to being completely impractical, this interpretation finds no support in the sphere of law and regulation encompassed by CEQA.” Ramirez cited , (2000) 83 Cal.App.4th 1004 (see , October 2000), in which the court ruled that the identification of Borders bookstore as the tenant of a proposed project was not enough to trigger additional environmental review. “So long as the project is approved, CEQA has no concern about who uses it,” Ramirez wrote. The attorney general and MODE argued that withholding Wal-Mart’s name resulted in less than the “full disclosure” required by CEQA. But the court held that the full disclosure requirement applies only to environmental impacts. “Therefore, in order to demonstrate that CEQA requires disclosure of the identification of the end user of a project, it is incumbent upon MODE and the attorney general to demonstrate that the identity implicates potential physical environmental impacts,” the court ruled. But MODE attorney Johnson said the court’s argument is circular: To demonstrate that a specific user will have an environmental impact, the public must know who the user is. If the public does not know, it cannot make a case. Johnson contended that Wal-Mart’s policies for delivery are different from other companies’ and results in large numbers of trucks parking around distribution centers. Johnson also complained because the court upheld the EIR’s traffic analysis, which was based on traffic at an unnamed “similar facility” and not on the Institute of Transportation Engineers’ figures that are typically used. “Effectively what the court is saying … is that even though you know who the proponent is, you don’t have to disclose that proponent,” Johnson complained. “And you don’t have to use industry standards for evaluating impacts. You can use another facility owned by the same proponent … with no way of being able to check it.” But Neal Singer, the city’s attorney, said the project opponents were trying to build too much into the project description requirement. “The administrative record was bad for them,” Singer said. So opponents argued that the project description should excuse them from the normal requirements for getting everything in the administrative record, he said. “There are all kinds of reasons for submitting projects,” Singer added. “If you had to know the end user every time, it would be pretty cumbersome,” MODE has asked the state Supreme Court to review the case. The second case came from the City of Irvine and involved the city’s general plan amendment and zoning change for the 7,743-acre “northern sphere,” near the former El Toro Marine Corps base. The city approved the northern sphere plan and an EIR in June 2002. The environmental group Defend the Bay sued, alleging, among other things, that the project would exacerbate employment-rich Irvine’s jobs-housing imbalance. A trial court ruled for the city. Defend the Bay appealed but the Fourth District, Division Three, upheld the lower court. The city’s plan called for development that would eventually create 17,667 jobs and 12,350 housing units, for a ratio of about 1.44 to 1. Defend the Bay argued that there was insufficient evidence for the EIR’s conclusion that the project would not worsen Irvine’s housing shortage. The EIR said that the project would actually improve the city’s jobs-housing balance because other projects have jobs-housing ratios of up to 8.2 to 1. Plus, the EIR stated, there is “considerable future housing growth” planned in South Orange County and the area is “expected to remain housing rich through 2025” with overall jobs-housing ratios in different areas of 1.05 to 1 and 1.28 to 1. “The evidence supports the no-adverse-impact conclusion for the current project,” Justice William Bedsworth wrote for the Fourth District. “Needed housing will be added, the city-wide imbalance of more jobs than housing will be ameliorated, and the shortfall in housing within the city will be made up by plentiful housing in adjacent communities. Whether we would agree that more jobs than housing is an adverse impact is not the question, and it is not our function to second-guess the city’s decision. Rather, our role is to determine if the conclusion reached by the city has support in the record. It does.” Defend the Bay argued that the project was inconsistent with the city’s general plan, which calls for “balanced residential and nonresidential development throughout the city.” The group also contended the EIR’s alternatives analysis and statement of overriding consideration were inadequate because they did not recognize the project’s housing imbalance. The court rejected these contentions. “Defend the Bay sees an inconsistency here because the project creates more jobs than housing and adds to the city’s housing shortage,” Bedsworth wrote. “Thus, it says, there is no balance between jobs and housing. This is semantic manipulation. We are not dealing with the assaying of minerals here. Balance does not require equivalence, but rather a weighing of pros and cons to achieve an acceptable mix. The general plan requires the city to ‘strive to improve’ the jobs-housing relationship. This project clearly does so. That Defend the Bay would strike a different balance than the city does not mean the project is inconsistent with the policies at issue.” Jeffrey Melching, the city’s lawyer, said the decision is useful because it says that blind adherence to a certain jobs-housing ratio is unnecessary. The court also said it was acceptable for the city to consider regional housing conditions. “I think it’s the first case in California that has a discussion in great detail of the jobs-housing ratio,” Melching said. “It really set out a guideline for how you’re going to look at jobs-housing balance questions.” Interestingly, Defend the Bay and the Irvine Company (the real party in interest) asked the court to dismiss the case after oral arguments were conducted because they had reached a settlement. The court declined to dismiss the matter, though. “Whether a public entity can approve a development project that creates more jobs than housing is a matter of public interest and likely to recur,” Bedsworth wrote in a footnote. The city was not a party to the settlement, Melching said. The fact that the city rezoned 227 acres in the northern sphere from a medical and science designation to residential “had nothing to do with the settlement. In fact, it predated the settlement,” he said. First Case: , No. E033904, 04 C.D.O.S. 6060, 2004 DJDAR 8195. Filed June 10, 2004. Ordered partially published July 2, 2004. The Lawyers: For MODE: Raymond M. Johnson, Johnson & Sedlack, (909) 506-9925. For Apple Valley: M. Neal Singer, Singer & Coffin, (949) 863-1224. For Pluto Development: Jennifer Guenther, Gresham, Savage, Nolan & Tilden, (909) 684-2171. Second Case: , No. G032062, 04 C.D.O.S. 5877, 2004 DJDAR 7965. Filed June 29, 2004. The Lawyers: For Defend the Bay: Kevin K. Johnson, Johnson & Hanson, (619) 696-6211. For the city: Jeffrey Melching, Rutan & Tucker, (714) 641-5100. For the Irvine Company: Christopher Garrett, Latham & Watkins, (619) 236-1234.

The court of appeal has cleared the way for the Modesto Redevelopment Agency to sue manufacturers and suppliers of dry cleaning solvents and equipment. While the First District Court of Appeal did not rule on the Redevelopment Agency’s claims, the unanimous appellate panel did overturn a lower court decision to dismiss the lawsuit against the manufacturers and suppliers. By potentially making more parties liable for the cleanup of contamination, the decision could bolster redevelopment agencies’ efforts to clean up tainted land and water. At issue is liability for contamination from two dry cleaning solvents, perchloroethylene (PERC) and trichloroethylene. The city argued that dry cleaners dumped the solvents into the city’s sewer system and let the solvents leak into the environment. The city sued a collection of manufacturers, distributors and dry cleaners. Under the Polanco Act (Health & Safety Code § 33459), a redevelopment agency may remediate contaminated properties within a project area and may recover the costs from the responsible parties. The definition of a “responsible party” is contained in the Porter Cologne Water Quality Control Act (Water Code § 13000 et seq.). San Francisco Superior Court Judge Richard Kramer granted summary judgment for the manufacturers and distributors, but he also asked for guidance from the appellate court. Writing for the First District, Justice Maria Rivera first dealt with the common law definition of nuisance, concluding, “ iability for nuisance does not hinge on whether the defendant owns, possesses or controls the property, nor on whether he is in a position to abate the nuisance; the critical question is whether the defendant created or assisted in the creation of the nuisance.” The court then moved to the question of whether the city’s claims under the Polanco Act fell within the realm of nuisance or of product liability law. The court turned to , (1990) 221 Cal.App.3d 1601, a case that also involved manufacturers, distributors and end users of hazardous materials. “We agree with the first stated conclusion in — that those who create or assist in creating a system that causes hazardous wastes to be disposed of improperly, or who instruct users to dispose of wastes improperly, can be held liable under the law of nuisance,” Rivera wrote. “Here, for example, the city claims that, with knowledge of the hazards involved, some of the defendants instructed the dry cleaners to set up their equipment to discharge solvent-containing wastewater into the drains and sewers, and that others gave dry cleaners instructions to dispose of spilled PERC on or in the ground. We conclude that these kinds of affirmative actions or instructions could support a finding that those defendants assisted in creating a nuisance.” But the court distinguished those parties that provided instruction to dry cleaners from manufacturers that made products but offered no guidance to end users. “ e conclude that those who took affirmative steps directed toward the improper discharge of solvent wastes — for instance, by manufacturing a system designed to dispose of wastes improperly or by instructing users of its products to dispose of wastes improperly — may be liable under that statute , but those who merely placed solvents into the stream of commerce without warning of the dangers of improper disposal are not liable under that section of the Porter-Cologne Act,” the court ruled. The First District returned the case to the trial court with instructions to “apply the standards articulated in this decision” to the facts in Modesto. The Case: , No. A104367, 04 C.D.O.S. 4692, 2004 DJDAR 6452. Filed May 28, 2004. Modified June 28, 2004 at 2004 DJDAR 7928. The Lawyers: For Modesto: Duane C. Miller, Miller, Axline & Sawyer, (916) 924-8600. For Dow Chemical (real party in interest): Gennaro Filice, Filice, Brown, Essa & McLeod, (510) 444-3131.

Habitat conservation plans have become popular tools for balancing development with protection of imperiled plant and animal species. Since Congress authorized them in 1982, nearly 500 habitat conservation plans (HCPs) have been adopted nationwide. The plans were not always so popular. Only 20 HCPs won approval during the program’s first 12 years. Their use accelerated in 1995, when the Clinton administration began promoting them in the hope of blunting congressional efforts to rewrite the Endangered Species Act (ESA). And they really took off in 1998 with adoption of the controversial “no surprises” policy, which made HCPs more attractive to landowners by promising them relief from future regulatory meddling. The no surprises policy was immediately attacked by environmental organizations, which recently won a court ruling overturning it. Although not quite the decisive victory the plaintiffs sought, the ruling nevertheless resulted in the suspension of the federal government’s HCP program and has cast doubt on its long-term future. As originally adopted in 1973, the ESA made it a crime to “take” a species listed as threatened or endangered, “take” being defined as any activity that kills or harms listed species or destroys their habitat. In 1982, Congress amended the ESA to allow federal agencies to issue permits for the “incidental take” of listed species during the course of otherwise lawful activity. Any application for an incidental take permit must be accompanied by an HCP that spells out how the effect of the permitted activity on a listed species will be minimized, monitored and mitigated. Landowners initially were unenthusiastic, mainly because of a requirement that HCPs include a clause allowing their terms to be changed whenever federal agencies deemed it necessary. Why go to the trouble and expense of developing a habitat plan, landowners reasoned, if the government could rewrite the permit at any time? The “no surprises” policy, originally announced in August 1994, was adopted to cure that perceived shortcoming. The policy required that federal agencies approving HCPs provide “assurances” to landowners that once an incidental take permit was approved, the government would not later change the permit’s terms in a way that increases the landowner’s costs or further restricts the use of natural resources. Under “no surprises,” no additional conservation or mitigation measures could be imposed even if changed circumstances rendered the HCP inadequate to protect a listed species. Biologists and environmentalists decried the policy, charging that it opened a gigantic loophole in the ESA and ignored the uncertainty inherent in the science of conservation biology and ecosystem management. In 1996, several groups filed a lawsuit alleging that the policy had been adopted in violation of the Administrative Procedures Act, which requires public notice and an opportunity for public comment before such regulations are adopted. The federal government settled that suit by agreeing to delay final adoption until the government had solicited public comment. About 800 comments subsequently were received, 755 of them opposing the policy. Many comments came from conservation biologists who warned that without a mechanism to respond to such “surprises” as drought, disease, fire, storms and floods, the HCP program would guarantee the loss of species and habitats. But the federal agencies adopted the original policy virtually unchanged. In 1998, six environmental groups sued again, arguing that the government still had failed to comply with administrative law and that the policy violated the ESA. While that suit was pending, the federal government adopted yet another policy making it more difficult to revoke incidental take permits. The plaintiffs, including the Spirit of the Sage Council and the Humane Society of the United States, amended their suit to allege that the revocation policy also violated the ESA and the Administrative Procedures Act. Intervening as defendants in the litigation were the city and county of San Diego — where large-scale HCPs are a particularly popular conservation tool (see , February 2003) — Orange County, Irvine Ranch Water District and a coalition that includes the National Association of Home Builders, the Building Industry Legal Defense Foundation, the Kern Water Bank Authority, and the American Forest and Paper Association. In December 2003, Judge Emmet Sullivan of the federal district court in Washington, D.C., ruled that the federal government had, indeed, violated the Administrative Procedures Act by adopting both the “no surprises” and permit revocation policies without prior public notice and without providing a meaningful opportunity for public comment. He suspended both policies and ordered officials to start over. “The ruling is a huge victory for imperiled animals and plants, as well as the public’s basic right to have a say in how public resources are managed,” said Leeona Klipstein, executive director of Spirit of the Sage Council. The defendants were less enthusiastic. “The inability to give ‘no surprises’ assurances to landowners would not only be a breach of faith with those landowners, it would also be a serious impediment to our ability to conserve and enhance habitat for imperiled wildlife,” said Craig Manson, assistant secretary of the Interior. Duane Desiderio, vice president of the National Association of Home Builders, was more blunt. “Now, a permit isn’t worth the paper it’s written on,” he told the Associated Press. The legal saga did not end there. Following the judge’s ruling, USFWS Director Steven Williams issued a memo directing his regional managers to continue approving HCPs containing the no surprises clause, as long as they also included legal language noting that the remaining stipulations in each HCP would remain in effect if the no surprises policy were subsequently invalidated. The plaintiffs went back to court, and on June 10, Judge Sullivan ordered the agencies to stop issuing HCPs containing the no surprises clause. He also gave the agencies until December 10 to complete the process of developing new permit rules. Williams then issued another memo directing his agency to stop approving incidental take permits altogether, but not before the USFWS on June 22 approved an HCP and incidental take permits covering 1 million acres and 146 species in rapidly growing western Riverside County. The Riverside County plan, perhaps the most ambitious HCP to date, does not contain the no surprises guarantee, although federal officials could add it later. Significantly, Judge Sullivan did not rule on the substantive claim in the lawsuit: that the no surprises policy violates the ESA. Absent such a ruling — and given the popularity of no surprises HCPs — it is likely the federal agencies will simply readopt the polices after the legally prescribed public comment process has been completed. If that happens, another round of litigation is likely. Contacts: U.S. Fish and Wildlife Service, habitat conservation planning: http://endangered.fws.gov/hcp/index.html Spirit of the Sage Council: www.sagecouncil.com

The average home price in California topped $400,000 in June. This news stimulated the now-familiar headlines about how even beat-up tract homes from the ’60s have become unaffordable for middle-class families. It’s getting to the point that a six-figure income does not guarantee homeownership. But what does this do for the more traditional “affordable” housing that we in California have supposedly been fighting about for the last several decades – housing not for the middle class but for low-wage workers and for the poor? Has this topic slipped off the radar screen altogether amid concerns about housing for teachers and paramedics? And when concern for poor people does emerge, will the astronomical price of housing make the cities and neighborhoods more amenable to lower-cost housing – or less? These thoughts surfaced recently when two affluent cities in South Orange County, struggled with the question of how to consider two different “affordable” housing projects. Back in January, the Steadfast Cos. gave up on an apartment proposal for a 23-acre hilltop site on Jeronimo Road in Mission Viejo after intense neighborhood opposition. The proposal called for 168 units, or about 7 units per gross acre – about the density of a typical single-family subdivision. Nevertheless, the project was designed to accommodate low- and moderate-income residents, and neighbors objected. According to the , everyone appearing before the Planning Commission opposed the project and claimed it “would bring overcrowded apartments, graffiti, gangs, drugs, and even drive-by shootings.” The perplexed developer, who had brought forth the low/mod project in response to direction from the city’s staff, went back to the drawing board. In June, the affordable housing dilemma surfaced in San Juan Capistrano when the City Council voted in closed session not to sell a 2.7-acre parcel of land to a nonprofit housing developer. Once again, neighborhood concern was the driver. As one council member said, “The neighbors were concerned about the density and the property values. I felt the complex was too expensive, too massive, and wasn’t right for the neighborhood.” In each of the two projects, some units would have been set aside for families categorized as “very low income,” which in the case of Orange County means a household income of about $37,000 per year, while others would have been set aside for “low income” families – those up to about $57,000. In each case, the city was driven by pressure to comply with the low- and moderate-income housing allocation target that resulted from the regional housing needs assessment process – the dreaded “housing element” requirement overseen by the state Department of Housing and Community Development. One of the ironies of the recent real estate boom is that it seems to have rendered the income categories somewhat obsolete. The housing element system requires jurisdictions to plan for the amount of housing required in three specialized income categories – very low income (up to 50% of median income), low income (50% to 80% of median income), and moderate income (80% to 120% of median income). The assumption is that people making more than 120% of median income can take care of themselves in the housing market. The recent debate over workforce housing has left the first two categories behind. Builders focusing on workforce housing usually say they are targeting households at 80-200% of median income – which today amounts to somewhere between $50,000 and $100,000 in most parts of California. (See , July 2004.) At current interest rates, these incomes can leverage home prices of $200,000 to $400,000 – prices that were well within range just a year or two ago, but are quickly vanishing today. More significantly, the recent price run-up has increased the gap between market and subsidized housing, especially in affluent areas. Maybe a family’s “low-income” pay can leverage a $200,000 house (or rent of $1,000 to $1,500 a month). But such neighbors don’t look very attractive when the average home price in your tract is $800,000 and rising by $10,000 or more a month.. Ironically, the problem is not that everybody wants to build high-end housing instead of affordable housing. There are plenty of developers – both nonprofit and for-profit – who are trying to make “affordable” housing deals work. There are also lots of different pots of money around – low-income housing tax credits, redevelopment housing setaside, Proposition 46 funds – that can be tossed into the mix. (San Diego, for example, is considering increasing the bed tax and/or levying a car rental tax to provide funds.) And there are lots of cities and counties promoting low-income housing, either because they think it is the right thing to do or because they feel the heat from HCD. The problem, as the two South Orange County examples suggest, is the sites. A given site may look good – until the public meetings start. Cities often try to avert this problem by identifying sites that seem segregated from higher-end residential neighborhoods. In the Mission Viejo case, the 23-acre parcel was located on a hill 40 feet above street level. It was adjacent to commercial property and did not abut any residential parcel. Residents responded by circulating a flier reading “Stop the Nightmare Before It Starts,” which contained a rendering of a public housing project. So who’s being left out in the cold? Actually, it is not all low-wage or low-income people. Some folks who qualify for affordable housing are more acceptable than others – senior citizens especially. In fact, some reports suggest that because cities often use senior projects to meet their affordable requirement, there’s a glut of senior housing. In Santa Clara County, developers seeking to avoid political opposition have focused on senior housing and housing for moderate-income residents (80-120% of median income). The result? “It’s cutthroat,” says one San Jose developer, who has proposed a moratorium on low-income senior housing. This glut may not last long, and it might not become widespread. After all, everyone is predicting a boom in the elderly population in California. But it does suggest that some low-income groups benefit while others do not. And that may have peculiar consequences as well. The gap in affordable housing appears mostly to affect families with low-wage workers – farmworkers, retail clerks, and others seeking to make ends meet on one or two minimum-wage jobs. But for these groups, there is another way around the housing problem – if they’re willing to overcrowd their way into the American dream. Anecdotal evidence suggests that extended immigrant families are bootstrapping their way to ownership even in this housing market by doubling and tripling up – not only in the housing unit itself, but on the mortgage. By combining their salaries, three, four, or five low-wage earners can escalate beyond the moderate-income category and buy a nice house. It will be interesting to see how affluent neighbors react to that kind of upward mobility, because there is an inherent conflict. On the one hand, the neighbors are undoubtedly thrilled to see owner-occupied single-family homes nearby. On the other hand, they’re probably not too happy to see these very same houses overcrowded by low-wage workers. Many cities have overcrowding ordinances, so the neighbors might call the local code enforcement department. But that would mean kicking people out of houses that they own. If that starts happening, the battle over the Jeronimo Road hill will pale by comparison.

The Coastal Act trumps both the Density Bonus Act and the Mello Act, which requires affordable housing in coastal areas. That’s the conclusion of the Second District Court of Appeal, which upheld the City of Los Angeles’s decision to deny a 15-unit housing project in Venice that would have replaced a three-unit building. The ruling reaffirms the power of the Coastal Act, whose primary purpose is to protect coastal resources. In this case, Los Angeles officials decided that the visual incompatibility of the new project, proposed by Kalnel Gardens LLC, with existing buildings violated the Coastal Act even though some buildings nearby were of similar scale. The court had an easy time with the Density Bonus Act, since that law expressly states that it does not supercede the Coastal Act. The court had a more difficult time with the Mello Act, which specifically applies within the coastal zone. In addition, the Coastal Act states that its provisions should not be used to allow local governments to obstruct the construction of affordable housing under other laws. However, the appellate court found, the Coastal Act also requires that the design of new developments protect scenic views and be “visually compatible with the character of the surrounding areas.” (Pub. Resources Code, § 30251.) That was the basis of the City’s decision to reject the Kalnel project, and on appeal Kalnel does not contend there was insufficient evidence to support that finding.” Kalnel proposed a project that included five single-family homes and five duplexes and received a density bonus because two units were reserved for very-low-income families. Under the density bonus law, Kalnel also got a height variance. City staff gave the project various approvals, including a coastal development permit, but neighbors appealed the project to the Planning Commission, claiming that height, density, setbacks, and other visual characteristics were out of step with the neighborhood. At a hearing before the West Los Angeles Area Planning Commission, neighbors claimed one- and two-story structures outnumbered larger structures such as the one proposed by a 9:1 ratio. However, Kalnel’s lawyer ultimately said the project was “all a case about affordable housing and density bonus.” Kalnel lost all the appeals, including the appeal to the Los Angeles City Council, and then filed a lawsuit. Los Angeles County Superior Court Judge James C. Chalfant ruled that the city had violated the Housing Affordability Act and that the project conformed to density bonus rules. However, the court ruled that the three housing laws are subordinate to the coastal act and substantial evidence existed that coastal resources would be threatened by the project. Perhaps the most important issue was whether the Coastal Act trumps the density bonus law – a law that developers often use to increase the density of their project above local zoning limits in exchange for providing affordable housing. But this proved to be an easy issue for the court to resolve. Writing for the three-judge panel, Justice Laurence Rubin simply noted that the The Density Bonus Act (§ 65915) states: “Nothing in this section shall be construed to supersede or in any way alter or lessen the effect or application of the .” (§ 65915, subd. (m).)” The Mello Act proved more complicated, since the law is specifically designed to ensure that affordable housing is provided in the coastal zone. Whenever a new project is built in the coastal zone, the law requires the developer to provide either new or replacement affordable housing. The Coastal Act also specifies coastal considerations do not permit local governments to avoid other affordable housing requirements. “Standing alone, these two provisions might be construed as giving the Mello Act primacy over the Coastal Act,” wrote Justice Rubin. “However, the Coastal Act also requires that the design of new developments protect scenic views and be ‘visually compatible with the character of the surrounding areas.’ (Pub. Resources Code, § 30251.)” In further discussion about the conflict between coastal resources and affordable housing, Justice Rubin wrote: ‘Which interpretation is most protective of coastal resources? One that requires Mello Act housing even if it blocks coastal access, intrudes into environmentally sensitive areas, or is visually incompatible with existing uses, or one that requires application of the Mello Act’s affordable housing requirements within the coastal zone so long as those housing projects abide by the Coastal Act’s overall protective provisions? He concluded: “Remembering the Legislature’s statements that protecting coastal resources is a paramount concern because those resources are of vital and enduring interest, it seems clear that the latter interpretation must prevail.” The appellate court declined to consider the question of the Housing Affordability Act because of a technical error in the appeal made by Kalnel. The Case: Kalnel Gardens LLC v. City of Los Angeles , No. B264434 (September 29, 2016). The Lawyers: For Kalnel Gardens: Allen Abschez, Loeb & Loeb, aabshez@loeb . com For City of Los Angeles: Michael Bostrom, Deputy City Attorney, mailto:Michael.Bostrom@lacity.org

Everyone’s favorite factoid about the Golden Gate Bridge concerns its paint job. Crews are endlessly refreshing its orange coat, working from one end to the other throughout the year and then starting all over again. Such are the ravages of salt and fog. It’s a mundane story about the need for constant maintenance of an iconic piece of infrastructure. Another crucial — if less beloved — piece of California’s transportation infrastructure operates much the same way, albeit in a longer time frame. I have flown into and out of Los Angeles International Airport on average once per month for the better part of three decades. Just as the Golden Gate Bridge is always being painted, LAX is always under construction or renovation –in sometimes valiant, sometimes halfhearted , usually halting attempts to spruce up L.A.’s “nine terminals linked by a traffic jam.”  It’s one traffic jam that may finally end. Last week, Los Angeles World Airports released the environmental impact report  for what is the latest, and perhaps final, piece of major upgrades to LAX. The Landside Access Modernization Program (LAMP) includes a consolidated rental car center, two intermodal facilities, and other aesthetic and mobility upgrades. In other words, LAX’s overhaul is about everything but aviation. Previous attempts to comprehensively upgrade and expand the airport have failed every which way for decades. But this one seems serious. It includes a new rail station and people-mover, to tap into and leverage Metro’s Crenshaw and Green lines, and it has a possible 2024 Olympics in mind.  As we ponder the wonders of a consolidated rental car lot, a people mover, and replacement of or massive renovations to those nine (newly renovated) terminals, it’s important to understand that the state of LAX centers on not just aviation, mobility, or even economic development. It is also very much an element of land use, planning, and urban growth.  Most obviously, LAX would not be a global hub were its urban region not itself a global powerhouse. Unlike at the Dubais and Atlantas of the world, many people don’t change planes. More people actually get on and off airplanes at LAX than at almost any other major world airport. Angelenos are blessed to be connected to the world in ways that folks in Chico, Fresno, San Diego — or any other American city short of Chicago, for that matter — can hardly imagine. (I’m drafting this blog on a nonstop flight from Shanghai’s Pudong Airport, whose terminals are massive enough to make LAX’s terminals look like Cessnas next to A380s.) The Los Angeles Economic Development Corp. estimates that this kind of connectivity is good for over economic impacts of over $120 billion per year.  While LAX is a global institution, it is also a hyperlocal one. The new plan has arisen largely because of a settlement between LAWA and its neighbors in Westchester this summer. They and the airport had been bickering and negotiating over heaven and earth for as long as anyone can remember. The last major settlement was in 2006. A community of people living in largely middle-class, single-family homes, Westchester residents are quintessential NIMBY’s, opposing an admittedly concerning land use. The settlement's most important provision is its cap of 79 million annual passengers — a mere 4 million above its current usage. This keeps LAX the seventh-busiest airport in the world for the moment. But it all but ensures that it will soon be eclipsed by the likes of Shanghai, Istanbul, and Hong Kong. And the cap mirrors larger debates about growth in Los Angeles, in which opponents of growth cannot believe that the city can accommodate more residents, no matter what strategies the city lays out and no matter how much new transit is built. "These old ‘NO LAX Expansion’ signs are now officially vintage,” wrote Los Angeles City Councilmember Mike Bonin on his Facebook page. "From now on, everyone is saying yes to modernization and improving our airport and passenger experience, and saying 'hell no' to expansion." Of course, LAX only has such testy neighbors because, at this point, it’s an old airport. The empty land surrounding Mines Field filled in decades ago. Meanwhile, Pudong is a good 25 miles from central Shanghai. It too will get consumed one day.  Ironically, a shiny new LAX will probably be more appealing to travelers. They’ll get a far better first impression of our city, and it’s likely that more than 79 million people will want to fly through LAX. When demand butts up against the cap, it will all but ensure higher fares. Maybe this tension will finally lead to the holy grail of Southern California transportation: regionalization. Westchester residents have always wanted more passengers to use the region’s smaller airports, particularly Ontario, which, unlike Burbank and Long Beach, can and wants to expand. At long last, the City of Ontario took control of l ong-suffering ONT , meaning that expansion may be in the offing.  What of the design for the “new” LAX? Like those of every other modern airport, they are inevitably flawed but also probably fine. Conceptual renderings show sleek, generic people-mover stations and similarly inoffensive designs for the other facilities. I happen to think that many of the new mega-airports, like Pudong, Beijing, Guangzhou, Dubai, and Bangkok are over-engineered and inappropriately massive. LAX will always be intimate by comparison. At least it feels like it was designed by humans and not, say, a self-aggrandizing totalitarian government.  Now that LAX’s future is certain and Ontario controls its own density, there’s only thing left to do: reopen Palmdale Airport and finish that little high-speed rail link we’ve always talked about.  Image courtesy of LAWA.

A longtime anti-poverty lawyer and his wife have lost an appellate case against the City of West Hollywood in which they challenged the city’s imposition of inclusionary housing fees on their project. The ruling strengthens the power of local governments to enforfe inclusionary housing policies, partly by reinforcing an appellate court ruling from San Jose last year. Shelah and Jonathan Lehrer-Graiwer sued West Hollywood over a wide variety of fee-related issues on their 11-unit Croft Avenue housing project, including the inclusionary housing fees, which totaled more than $500,000. But the Second District Court of Appeal rejected a wide variety of arguments and said the city had acted properly under the Mitigation Fee Act (AB 1600) in setting out an overall schedule for inclusionary housing fees. Instead, the Second District ruled that the fees were appropriately based on the city’s overall lack of affordable housing. Writing for a unanimous three-judge panel, Justice Victoria Chaney said that “the purpose of the in-lieu housing fee here is not to defray the cost of increased demand on public services resulting from Croft’s specific development project, but rather to combat the overall lack of affordable housing.” Relying on California Building Industry Assn. v. City of San Jose (2015) 61 Cal.4th 435 , she added: “This type of fee is not ‘for the purpose of mitigating the adverse impact of new development but rather to enhance the public welfare by promoting the use of available land for the development of housing that would be available to low- and moderate-income households.’” The Lehrer-Graiwers, operating as 616 Croft Ave. LLC, have sought for many years to demolish two single-family homes just south of Melrose Avenue in West Hollywood and replace them with an 11-unit project. (Jonathan Lehrer-Graiwer was for many years a lawyer with the Western Center on Law and Poverty and later worked on many social justice cases as a lawyer in private practice.) The Lehrer-Graiwers won city approval for the project in 2005 but because of the downturn in the economy did not seek to pull permits until 2011. At that time, the city demanded that they pay higher fees totaling $580,000, including $540,000 for the inclusionary housing fee. The Lehrer-Graiwers paid the fees under protest and sued They challenged the city’s fee ordinance both on its face and as applied to their project. The appellate court concluded that the facial challenge was time-barred because the ordinance was adopted 10 years before the lawsuit was filed. More importantly, the appellate court rejected the as-applied challenge as well. The Lehrer-Graiwers made a wide range of arguments, including the idea that the fees were really taxes under Proposition 218. The court rejected all these arguments. Most important, the appellate court concluded that the inclusionary housing fees did not need to be tied to the impact of the Lehrer-Graiwers’s project but, rather, could be part of an overall effort to tackle the affordable housing problem in West Hollywood. First, the court concluded that the burden of proof that the fees are reasonable lies with the city, not with the developers. The Lehrer-Graiwers had argued otherwise, citing Prop. 218. But citing San Jose , the court said: “The purpose of the in-lieu housing fee here is not to defray the cost of increased demand on public services resulting from Croft’s specific development project, but rather to combat the overall lack of affordable housing.” Among other things, the court ruled on Ehrlich v. City of Culver City (1996) 12 Cal.4th 854, which distinguished between fees charged on a project basis and fees charged as part of an overall city policy. Partly based on this reasoning – and again relying on San Jose – the court said the challenge should not have been based on the application of individual fees to an individual project. “Although the fee must be reasonable, the inquiry is not about the reasonableness of the individual calculation of fees related to Croft’s development’s impact on affordable housing,” the court wrote. “The inquiry is whether the fee schedule itself is reasonably related to the overall availability of affordable housing in West Hollywood.” The Case: 616 Croft Ave LLC v. City of West Hollywood , No. B266660 (September 23, 2016) The Lawyers: For 616 Croft Ave (the Lehrer-Graiwers): David Lanferman, Rutan & Tucker, dlanferman@rutan.com For City of West Hollywood: Michael Jenkins ( mjenkins@localgovlaw.com ) and Christi Hogin ( hogin@localgovlaw.com ), Jenkins & Hogan Never forget to clean your HTML code and double check your content before publishing an article!

Reversing an appellate court decision, the California Supreme Court ruled Tuesday that courts should substitute their “abstract” judgment for the lead agency’s judgment as to what constitutes a “new” project that requires more extensive environmental analysis. The ruling appears to clear up a conflict between appellate rulings from different districts. But the plaintiffs said they still believe they can win the case on remand. The case involved a proposed building program at College of San Mateo, a community college located in the City of San Mateo, that would have involved demolishing some buildings and renovating others. Initially, the college certified a mitigated negative declaration for the building program. Years later, however, the college changed the building program so that some buildings that would have been demolished would be renovated, while the Horticulture Building, which wraps around a horticultural garden, would be demolished. Concluding that the change did not constitute a “new project” under the California Environmental Quality Act, the college issued an addendum to the MND. A group of residents and students calling themselves Friends of the College of San Mateo Gardens sued and won in both San Mateo County Superior Court and the First District Court of Appeal. But in a unanimous decision, the Supreme Court reversed the First District. “When an agency proposes changes to a previously approved project, CEQA does not authorize courts to invalidate the agency’s action based solely on their own abstract evaluation of whether the agency’s proposal is a new project, rather than a modified version of the old one,” wrote Justice Leondra Kruger in an exceptionally clear and well-written argument. “… An agency that proposes project changes … must determine whether the previous environmental documents retains any relevance in light of the proposed changes and, if so, whether major revisions to the previous environmental document are nevertheless required due to the involvement of new, previously unstudied significant environmental impacts. These are determinations for the agency to make in the first instance, subject to judicial review for substantial evidence.” That was the important legal ruling, and it was pretty clear. Sabrina Teller, a lawyer, for Remy Moose & Manley who argued the case for the college, told SFGate : “The court is still urging a deferential standard.” However, Kruger acknowledged that the case before the Supreme Court did not address all issues in the case – including the question of the legal validity of the CEQA Guidelines sections that allow an MND addendum on a modified project rather than an environmental impact report. That’s one reason why the plaintiffs say they are confident of victory on remand. Susan Brandt-Hawley, lawyer for the plaintiff, said she is still hopeful that the lower courts will distinguish the original and revised project in such a way that her client will win. “Here we have an addendum to a neg dec, and the neg dec was for a preservation project. And the new addendum (actually therefore a revised neg dec) is for a demolition project,” she said in an email to CP&DR. The controversy in the case revolves around so-called “Building 20,” the college’s horticulture building and an adjacent garden that students and nearby residents value for its peacefulness. In 2006, the college adopted a building program that called for retention of Building 20 and demolition of other buildings on campus. The college also certified an MND for the project. Five years later, however, the college changed the building program, calling for renovation of the other buildings and demolition of Building 20 and the garden, along with replanting some of the herbs and bushes in the garden elsewhere on campus. The Friends group sued. In an unpublished opinion three years ago, the First District Court of Appeal ruled against the college, concluding that as a matter of law the 2011 building program was a new project rather than a modified project. The First District relied heavily on Save Our Neighborhood v. Lishman (2006), 140 Cal.App.4 th 1288. In that case, the Third District concluded that the question of a new or modified project was a “threshold question of law”. The following year, the Second District issued a somewhat conflicting ruling in Mani Brothers Real Estate Group v. City of Los Angeles (2007), 153 Cal.App.4 th 1385. In that case, the court found that a 3.3-million-square-foot project was a modification of a 2.7-million-square-foot project on which the city had done an EIR 15 years before. The Second District criticized Save Our Neighborhood , saying it undermined judicial deference of agency decisions. The appellate court in the College of San Mateo case acknowledged this conflict but used the Save Our Neighborhood reasoning, saying that “it is clear from the record tha tht enature of the project has fundamentally and qualitatively changed to the point where the new proposal is actually a new project altogether.” In her ruling for the Supreme Court, Kruger rejected the Save Our Neighborhoods reasoning put forth by the plaintiffs in this case. She wrote that this approach “would assign to court the authority – indeed, the obligation – to determine whether an agency’s proposal qualifies as a new project, in the absence of any standards to govern the inquiry.” She added: “ o ask whether proposed agency action constitutes a new project, purely in the abstract, misses the reason why the characterization matters in the first place….A decision to proceed under CEQA’S subsequent review provisions must thus necessarily rest on a determination – whether implicit or explicit – that the original environmental document contains some informational value.” The Case: Friends of the College of San Mateo Gardens v. San Mateo County Community College District , S215061 (September 19, 2016) The Lawyers: For Friends: Susan Brandt-Hawley, susanbh@preservationlawyers.com For College: Sabrina Teller, steller@rmmenvirolaw.com