In a pair of decisions issued on the same day, the Second District Court of Appeal, Division Four, has addressed the scope of permitted regulation when a mobile home park owner elects to convert a park into a residential subdivision and sell individual spaces. In cases from the City of Los Angeles and the Los Angeles suburb of Carson, the court ruled that local government may apply state law and local considerations to restrict mobile home park conversions. The first case,  Pacific Palisades Bowl Mobile Estates, LLC v City of Los Angeles , addressed the question of whether or not the procedures for conversion found in the Subdivision Map Act pre-empt all other regulatory requirements, such as those in the Coastal Act and the Mello Act. The decision also addressed whether or not the city complied with provisions of the Permit Streamlining Act. The second decision,  Colony Cove Properties, LLC v. City of Carson , dealt with the extent to which the City of Carson could add to the specific statutory requirements for park conversions. The facts of  Pacific Palisades  reflect a common pattern. Starting in April 2007 – and before filing an application – the park owner's representative met with city staff to discuss the approval process for converting the 170-space Palisades Bowl on Pacific Coast Highway into a residential subdivision. Staff provided a packet of information, including information on Coastal Act requirements and permits. At a follow-up meeting, the city staff advised the representative that a general plan amendment and rezoning were required. Over several months, the city was in communication with the park owner's representative and noted that there was continuing internal discussion as to the specific approvals necessary. On November 13, 2007, the property owner submitted an application for a tentative map to convert the mobile home park. Staff said the application was incomplete because it did not include a general plan amendment and zoning change. The property owner asserted that the city was required to process the application pursuant to the Subdivision Map Act (specifically, Government Code § 66427.5) and the Permit Streamlining Act. City staff sent a follow-up email message on November 20 referencing items necessary for a complete application. Because the Palisades Bowl is located in the coastal zone, the city pointed to the Coastal Act and the Mello Act. The former requires an applicant to get a coastal development permit prior to nearly any development activity in the coastal zone. The latter preserves low- and moderate-income housing in the coastal zone. Neither the city nor the applicant took further action until January 2008, when the applicant filed a writ and complaint in Los Angeles County Superior Court. The property owner argued that the city wrongly refused to process the application and that only requirements set forth in the Map Act (§ 66427.5) were applicable. The property owner complained about the city's failure to maintain a list of required information for a park conversion and for failing to process the application. The trial court found that the city did not have the required list, but ruled there was no legal sanction for the failure. The court also said that the November 20 email message substantially complied with the Permit Streamlining Act requirement to provide an applicant with a written completeness determination. The property owner then filed an amended lawsuit, arguing that the additional information required by the city was in conflict with the Subdivision Map Act. By this point, the city no longer maintained that a general plan amendment and rezoning were required. Still, the county said the applicant had to comply with the Coastal and Mello acts, and must file a tentative subdivision map. Los Angeles County Superior Court Judge James Chalfant concurred in property owner's argument, finding that the Mello Act housing requirements did not apply. The court ordered the application deemed complete, and directed the city to process the application based upon § 66427.5. Both sides appealed. Addressing first the Permit Streamlining Act issue, the appellate court agreed with the trial court that the city's failure to maintain the checklist of requirements for a mobile home park conversion did not result in the application being deemed complete. "In any event," Justice Thomas Willhite Jr. wrote for the court, "the city did maintain and provided to Palisades Bowl a list that it contended applied to Palisades Bowl's proposed conversion, albeit one that included numerous items that could not be required under § 66427.5. As the trial court properly found, the only effect of §§ 65940 and 65942 is to preclude the City from requiring any items not on the list it provided to Palisades Bowl." With respect to the City refusing to accept the application, the court suggested that such an approach violated the Permit Streamlining Act but was "irrelevant" because the city staff had sent an email message outlining the necessary information. While the email message did not meet the technical requirements for a completeness determination, it constituted substantial compliance with the state law, the court ruled. The court then turned to the issue of whether or not § 66427.5 pre-empted the Coastal Act and the Mello Act. While the court recognized earlier decisions that local enactments and development standards may be barred (as well as its own companion decision in  Colony Cove , discussed below), the court ruled pre-emption did not apply to the Coastal and Mello acts. "To be sure, the policy behind § 66427.5 is an important one – to encourage conversions of mobile home parks to resident ownership while protecting nonpurchasing residents," Willhite wrote. "But the policy considerations behind the Coastal Act – as well as the Mello Act, inasmuch as its genesis was the Coastal Act – are far more extensive." He cited the Coastal Act's stated "paramount concern" for protecting coastal resources. The  Colony Cove  case addressed how local governments may apply park conversion requirements, or more specifically, what local governments may not do. In February 2008, the City of Carson adopted an ordinance that applied certain presumptions as to whether or not a conversion was a bona fide conversion, based upon the results of the tenant survey mandated by Government Code § 66427.5. If less than 35 percent of tenants support a conversion, the action is presumed to be not bonafide and the city may reject the proposal. If 35 percent to 50 percent of tenants support conversion, the park owner has the burden of proving the proposal is bona fide. With more than 50 percent tenant support, the conversion is presumed to be legitimate. Colony Cove Properties, which owns Colony Cove Mobilehome Park and which had submitted a park conversion application, filed a lawsuit seeking to set aside the city's ordinance. Soon thereafter, Colony Cove filed an amended lawsuit challenging an earlier interim ordinance that had been periodically extended. The interim ordinance had imposed a moratorium on mobile home park conversions. The Los Angeles County Superior Court consolidated the two lawsuits for trial and agreed with the property owner that the city's duties with respect to the tenant survey were ministerial in character, and that the city's attempts to impose additional requirements were barred by § 66427.5. The trial court also found that the moratorium conflicted with the same code section. On appeal, the Second District agreed with the trial court as to the additional tenant survey requirements. However, the appellate court disagreed with the lower court's decision that the city's duties were ministerial in character and that the ordinance conflicted with the statute. After retracing the legislative history, Justice Nora Manella wrote that although a city or county could not modify the requirements for the survey or create tenant benefits different from those found in the statue, the city could take into consideration the results of the survey in its decision to approve, conditionally approve, or deny a conversion request. With respect to the moratorium ordinance, the appellate court noted the ordinance had run its statutory course of two years by the time the lawsuits were heard. Accordingly, the court concluded those claims were moot. Both appellate panels invited the Legislature to clean up the statutory ambiguities at issue in the cases. First Case: Pacific Palisades Bowl Mobile Estates, LLC v City of Los Angeles , No. B216515, 2010 DJDAR 13805. Filed August 31, 2010. The Lawyers:For Pacific Palisades Bowl: Craig M. Collins, Blum Collins, (213) 572-0400. For the city: Amy Brothers, deputy city attorney, (213) 978-8069. Second Case: Colony Cove Properties, LLC v. City of Carson , No. B219352, 2010 DJDAR 13779. Filed August 31, 2010. The Lawyers:For Colony Cove: Thomas W. Casparian, Gilchrist & Rutter, (310) 393-4000. For the city: Jeff M. Malawy, Aleshire & Wynder, (949) 223-1170.

The U.S. Court of Appeals for the Ninth Circuit has upheld the U.S. Fish and Wildlife Service's designation of 858,000 acres in Northern California and Southern Oregon as critical habitat for fifteen endangered or threatened vernal pool species. The court rejected attacks from the Home Builders Association of Northern California on the procedures used by the Fish and Wildlife Service (USFWS) to designate the critical habitat. At issue are scattered vernal pool complexes located across a large, two-state region. Vernal pools are seasonal puddles and wetlands that provide habitat for four endangered or threatened species of fairy shrimp and 11 protected plant species. Efforts to designate the vernal pool critical habitat, and related litigation, extend back to the 1990s. In February 2006, with litigation still pending, the USFWS settled on an 858,000-acre critical habitat designation. The Home Builders Association of Northern California and other organizations argued that the USFWS violated the Endangered Species Act (ESA) (16 U.S.C. § 1531  et seq .) in issuing its final rule designating the critical habitat by: 1) improperly identifying primary constituent elements on the designated habitat; 2) failing to identify the habitat as either occupied or unoccupied habitat; 3) failing to predict when species will be conserved; 4) improperly excluding developed areas from critical habitat designation; and 5) failing to conduct a cumulative economic impacts analysis. Giving deference to USFWS's procedures, the appellate court, like the trial court, upheld the habitat designations and rejected the home builders' arguments. Primary constituent elements The ESA, in part, defines occupied critical habitat as "the specific areas within the geographic area occupied by the species … on which are found those physical or biological features (I) essential to conservation of the species and (II) which may require special management considerations or protection" (ESA, § 3(5)(A)(i); 16 USC § 1532(3)(A)(i)). The Fish and Wildlife Service refers to the physical or biological features as "primary constituent elements" or "PCEs." Without challenging any specific habitat designations, the home builders claimed that an area must simultaneously contain  all  PCEs for a particular species to be designated as occupied critical habitat for that species. The court rejected this theory, explaining that the elements necessary to species' survival may occur in distinct geographic areas. For example, a species may require topographic features that feed vernal pools, as well as depressions where the vernal pools actually form – two mutually exclusive geographic areas. "In general, there is simply no reason that two elements essential for the conservation of a species need be present in the same area. As FWS points out, the critical habitat for a bird species might contain nesting grounds while another critical habitat contains feeding sites. As explained, such separation is especially appropriate for species that live in vernal pool complexes," wrote District Court Judge Rebecca Pallmeyer, sitting by assignment to the Ninth Circuit. Identification of a conservation point The home builders argued that the USFWS's determination of the PCEs was invalid because the agency identified only the features necessary to the conservation of the species, and did not determine when the species in question would be considered successfully conserved. The court rejected this argument, explaining that the requirement that USFWS determine when a species will be considered conserved applies to the preparation of a recovery plan – a different part of the ESA law (ESA § 4(f)(1)(B)(ii); 16 U.S.C. § 1533 (f)(1)(B)(ii) – and not to the determination of critical habitat. The builders had argued elsewhere that other recovery plan requirements should not be imposed on critical habitat designation. The court found that builders could not, on one hand, argue the recovery plan requirements should apply to critical habitat designation and, on the other hand, argue that the requirements should not apply. Further, if Congress had intended for the recovery plan requirements to apply to critical habitat designation, it would have said so, the court ruled, citing  Russello v. United States , (1983) 464 US 16, 23. Finally, the court stated that the difference between the two portions of the law makes sense because there is a one-year deadline for the designation of critical habitat, but no deadline for creating a recovery plan. Overlap between occupied and unoccupied habitat designation Under the ESA, an area constitutes "critical habitat" if it meets the requirements for occupied habitat or unoccupied habitat (16 U.S.C. § 1532 (5)(A)). The home builders contended that USFWS erred in the designation because the agency conflated the standards for occupied and unoccupied habitat. The court rejected the argument because no law required that every area be classified as either occupied or unoccupied, and because the agency had found that areas designated in the final rule met the more rigorous standard for defining unoccupied habitat. Textual exclusion of areas without PCEs In its final rule, USFWS stated that it had attempted to exclude developed areas that did not contain PCEs for the 15 vernal pool species, but the agency acknowledged that it inadvertently had included some developed areas, such as buildings, paved sites and boat ramps. USFWS stated that the inadvertently included structures were not considered part of the critical habitat. The home builders argued that this "textual exclusion" violated the ESA's requirement that specific areas be designated. However, the court, noting the builders' failure to identify an alterative procedure or point to a specific error in the procedure used, deferred to the USFWS's designation. Economic impact The Endangered Species Act mandates the consideration of economic impact before designating critical habitat, (ESA § 4(b)(2); 16 U.S.C. § 1533(b)(2);  Bennett v. Spear , (1997) 520 U.S. 154, 172). The Fish and Wildlife Service addressed the economic impact using the baseline approach, which compares the current state of affairs with how things would look after the designation of crucial habitat. The home builders argued USFWS should have used a cumulative assessment, a contention the Ninth Circuit rejected. The court explained that although a cumulative analysis would be required under the National Environmental Policy Act before a government agency took any action that might have a negative effect on the environment, a cumulative analysis is not required before the government takes action to protect the environment under the ESA. The Case: Home Builders Association of Northern California v. U.S. Fish and Wildlife Service , No. 07-16732, 2010 DJDAR 12302. Filed August 9, 2010 The Lawyers: For the Home Builders Association of Northern California: Damien M. Schiff, Pacific Legal Foundation, (916) 419-7111. For the Fish and Wildlife Service: Robert H. Oakley, U.S. Department of Justice,  (202) 514-2701.

At about 10:30 this morning, I stepped out of my office a block from Main St. in Ventura to get a cup of coffee. Almost immediately, I noticed something different. The parking lot on Oak Street, usually two-thirds empty in the morning, was mostly full. And the on-street parking spaces along Oak and Main Street, which are mostly occupied on a typical morning at this time, were mostly vacant. Why the switch? The paid parking portion of our downtown parking management program had gone into effect at 10 a.m., and it was already showing results. People who park all day downtown had moved into the lots and the upper levels of the parking garage. Spaces on the street became available for shoppers, diners, and others who were running short-term errands. In other words, only 30 minutes after we instituted the parking management program, it was working. In all the discussions around town this summer about paid parking, the emphasis has always been on the "paid" part. Why is the city charging for parking downtown? Are we just being greedy? Where will the money go? Why would anyone go downtown if they have to pay to park? These are all fair questions. (And they all have good answers -- for example, all the parking revenue money is going to benefit downtown and not being spent elsewhere in the city.) But the questions have obscured an important goal of the paid parking, which has nothing to do with revenue. The goal is to encourage employees and other long-term parkers downtown in order to free up space on the street for shoppers. And I was stunned at how quickly our "parking management" goal was achieved. In the months leading up to the inauguration of paid parking, I kept hearing stories about how downtown employees were hogging the onstreet spaces. I heard that some merchants told their employees to park on the street -- but a block away, so as not to take up parking in front of the store. I heard that some businesses and employees erase the chalk marks that our parking enforcement folks put on their tires. I heard that some business owners give their employees a few minutes off every two hours to move their cars. Frankly, I wasn't sure if I believed all these stories. After all, why would any merchant park in front of their own store? Why would you deal with all the hassles to park on the street -- erasing chalk, moving cars -- when there's free parking in city lots a half-block away? It seemed ridiculous to me. But the lesson from today is that it's not ridiculous. Obviously, what's been happening is that employees have been parking on the street and now they are parking in the lots. Anybody's first impulse, I think, is that paying for parking is a bad thing. But upon reflection, a lot of folks -- merchants and shoppers alike -- have come around to the idea that it can be a good thing. Main Street merchants have come to see that paid parking can help them too by opening up short-term spaces close to their store. As the owner of Jersey Mike's told me today, her customers used to have to circle the block three times looking for a space or park in a faraway parking lot. Now they can park right in front of her shop for a quarter -- or a dime -- or a nickel -- while they pick up their order. Because even though it's $1 for the first hour, you can buy less time with coins. And there's less traffic on the street because there's less "cruising" for a parking space. 9:15 pm. I walk back up Oak Street toward the office. The spaces on the street are mostly empty. And the parking lot across from office -- usually almost empty by now -- is completely full. Eleven hours later and it's still working. CP&DR Publisher Bill Fulton is Mayor of Ventura. This post was adapted from his mayoral blog .

With the implementation of SB 375 still to come, cities across California will be challenged to revamp their general plans to meet goals of reducing vehicle miles traveled and promoting more compact development. In the race to write the perfect plan, the City of Santa Monica has, according to some, taken an early lead with the approval in July of a new land use and circulation element (LUCE). A combination of a longstanding environmental ethic, a demanding citizenry, and good timing has resulted in Santa Monica's new land use and circulation element, which was approved, along with its EIR, by the city council last month. The plan is intended to take the already vibrant mini-city of 90,000 and give it a few nips and tucks that will create new clusters and, backers hope, alleviate the city's notorious traffic. The result, according to the LUCE's policy statements, will be a slightly more dense but far more sustainable place that balances urbanism against the city's more mellow past. "We're transitioning from � and have been transitioning informally �from a beachside cottage community to a vital, active, sustainable urban community," said Santa Monica Planning Commissioner Hank Koning. The LUCE had last been updated in 1984. Studies and planning for the LUCE commenced even before the passage of SB 375 but have since developed with its principals in mind. Even before it was approved by the City Council in July, the plan had already received awards from the Los Angeles Chapter of the American Planning Association and the Southern California Association of Governments. Last month it received the award for "Outstanding Comprehensive Planning Award, Small Jurisdiction" from the California Chapter of the APA. To some, as Santa Monica goes, so may go the state. "I can't imagine why this wouldn't be an SB 375 poster child," said Walker Wells, director of Green Urbanism Programs at Santa Monica-based environmental group Global Green USA. Every chapter of the LUCE document incorporates green components. This, said Wells, is a profound deviation from how general plans often address climate change. "Otherwise it ends up in the extra chapter that just gets put on for lip service," said Wells. Santa Monica has long had an outspoken environmental community, and its Sustainable Santa Monica plan has promoted environmental stewardship and mitigation of greenhouse gas emissions in a variety of ways. The LUCE, however, codifies this ethos in the general plan. It includes explicit environmental goals such as the generation of zero net new trips by 2025 � a goal that has obvious implications for other cities attempting to comply with SB 375. "They created a bold policy statement of no net new trips," said Yara Fisher, senior planner at AECOM and Cal APA jury member. "That's beyond anything that you're seeing anywhere else�.that was just really incredible for most of us on the jury." Santa Monica planners estimate that by 2030 the city could be emitting as few as 760,000 annual metric tons of greenhouse gas emissions, as compared to nearly 950,000 today. If the 2030 target is reached, it would beat the state's AB 32 target by over 150,000 annual tons. It would even beat the goals of the city's existing Sustainable City Plan, adopted in 1994. "They did what you're supposed to do in this day and age when you're�trying to implement sustainability," said Walker Wells,  "They established metrics for themselves. They've moved from just using rhetoric � a �balanced community,' a �livable place,' a �community with for opportunities for all' � and they asked, what are we really after? "No net new trips. They threw down the gauntlet and said this is what we're after." In addition to promoting density in key locations, the LUCE includes explicit goals regarding bicycling, walking, and even carpooling. Koning said that new development that adheres to the LUCE will not necessarily create a revolution in the way that commuters get to Santa Monica and the way that Santa Monicans get around their own city. He said, though, that incremental changes will be enough to keep traffic at bay. "We're not asking everybody to ride a bike," said Koning. "If 1 percent of the community rode a bike instead of driving and another one percent walked and another 1 percent took the bus, then that�makes a difference." If the LUCE works as intended, it will be no small feat. In addition to having prime beachfront property, Santa Monica is also one of the biggest employment centers in the Los Angeles. Its location on the geographic edge of the county means that commuters come from all directions and pool into the city's downtown and a handful of other commercial districts. The LUCE addresses this by taking advantage of possibly the biggest gift that any city could receive: Phase II of the Expo light rail line, which will create a seamless connection from Santa Monica to downtown Los Angeles. Originally approved in 2002 by Los Angeles Metro, Phase I is under construction and Phase II has been funded and slated for completion in 2015.   The Expo Line's three station stops in Santa Monica � including one at Pico and 17 th  St. that city officials fought for � provide the basis for the lion's share of the LUCE's densification efforts. "The real issue was to create corridors and have current and future jobs all right on the light rail corridor," said Santa Monica Planning Director Eileen Fogarty. "As you go toward downtown you have a tremendous amount of housing on that corridor." Otherwise, the LUCE prescribes small tweaks in land use patterns that, planners hope, will make an enormous overall difference in the city. Of paramount concern was the impact of any changes on the city's residential neighborhoods. Santa Monica has an outspoken no-growth contingent that, in 2008, went so far as to place an initiative on the ballot that would have essentially frozen much commercial development in the city. Fogarty said that in order to ensure that future development is appropriate, developers would have to provide community benefits according to guidelines that call for developers to provide specific amounts of public benefits in accord with the amount of square footage that they wish to build. Though Koning said he supports the LUCE, he also said that some developers and architects felt that restrictions might be strong enough to limit its overall effectiveness. "A design code can always be more restrictive but it never can be less restrictive," said Koning. "The idea of the plan is to have walkable streets and complete communities� if it's overly onerous, then developers won't build." One of the strongest gestures towards the city's anti-growth contingent was a firm cap on building heights at 35 feet, thus encouraging medium-density development throughout the key corridors rather than high-density development that could overshadow neighborhoods. Additionally, the LUCE provides disincentives for converting existing buildings and it promotes commercial activities that serve local neighborhoods rather than customers from the broader region. Rather than fight against outspoken residents, the LUCE process embraced them and made an effort to include as many of the city's voices as possible. Outreach took place on what some consider an unprecedented scale. "Another thing looked at was the public participation program and how different voices were brought into the planning process," said Fisher. "It was clear that they had done so much outreach in so many different ways." Fisher cited innovative outreach methods such as attending farmer's markets and convening over 60 citizens' groups. This outreach, however, has been criticized by some as an inordinately lengthy process that has resulted in a plan whose content � process notwithstanding � would have been the same if the plan had been approved years ago. In total, the LUCE process has taken six years. With the LUCE's passage, Fogarty said that the city will not be waiting to implement it. "To implement this we're looking at an interim control ordinance and then a comprehensive zoning ordinance and then we will be systematically doing area plans and specific plans," said Fogarty. "We're not just waiting several years until there's a final zoning ordinance." Contacts & Resources: SCAG Compass Blueprint Awards 2010 Santa Monica Land Use and Circulation Element Official Website  Yara Fisher, Senior Planner, AECOM  619.233.1454 Eileen Fogarty, Planning Director, City of Santa Monica,  (310) 458-8341 Hank Koning, Santa Monica Planning Commissioner; Principal, Koning Eizenberg Architecture, (310) 826-6131 Walker Wells, Global Green USA  (310) 581-2700

Orange County is known for its miles of tract homes, car traffic and a booming economy. Much of that growth is due to the work of the Irvine Company, which has shaped a swath of the central county through its control and development of 93,000 acres that were once one of California's great ranches. But beyond the residences and gleaming office towers the Irvine Company has built over the past 45 years, the company also, more quietly, committed a great deal of the old Irvine Ranch property to parkland. Altogether it has kept 50,000 acres in parkland. Many of the parks are of the landscaped neighborhood variety, a key selling point to its master-planned communities.  But recently the company deviated from ballfields and tot lots by completing paperwork on a 20-year old plan to turn over 20,000 acres in open space to the county. Even environmentalists are relatively happy with this one. "This is the largest single donation of land in the County's history," said Marisa O'Neil, public information officer for OC Parks, the county agency which will manage the property. "OC Parks does not have plans to develop any of it as manicured parklands. We will keep the natural character to it and allow people to make their own connections to the land." Some of the Irvine Company's most valuable development has occurred in the coastal plains of Orange County, where cooling breezes and ocean views are selling points. The city of Irvine is located there, and the company has built it into a community of over 200,000 residents. Almost all of the donated land is in the hotter northern reaches of the county, lying south of the Riverside Freeway and east of the Cleveland National Forest. Full of canyons and steep mountains, it contains areas that could have been developed into housing or industry. Instead, about all that runs through it is State Route 241, a north-south toll road. Much of the new parkland is located in unincorporated county land. The Orange County Board of Supervisors accepted 20,000 acres of permanent protected open space and parklands from the Irvine Company on June 29. The land will be managed for the next three years by the Irvine Ranch Foundation, a non-profit started with help from the Irvine Company. The Irvine Company's well-known chairman, billionaire Donald Bren, started the path towards the donation in 1990 when the Irvine Company began a collaboration with the Nature Conservancy, to survey and manage company-owned wildlands. At the time, it was announced that the land would ultimately be turned over to public ownership. The recent transfer to the county completed a 20-year process. When the donation was originally announced, "everyone looked at 'what's the catch'"? recalled Dan Silver, executive director of the Los Angeles-based Endangered Habitats League. "No one ever found a catch. The only concern was how the county would pay for it and how it would manage it." For the next three years, the Irvine Ranch Foundation will manage the land at a cost of nearly $1.6 million. The Irvine Company is also providing $4 million to establish the Orange County Parks Foundation, which will be combined with $2 million from the Nature Conservancy to help with land monitoring and new park infrastructure. The transfer of the property was watched closely by Orange County environmental groups, who formed a steering committee last year to monitor it. Members included representatives of such groups as the Sierra Club, the Audubon Society, Laguna Greenbelt, Hills for Everyone and Friends of Harbors, Beaches and Parks. The committee said it had four major concerns about the transfer: making sure the land kept its conservation protections, funding, and that it had a resource management plan and an independent oversight committee. "The county has assured us that these elements are or will be in place," said Jean Watt, President of the Friends of the Harbors, Beaches and Parks, in a press release at the time of the transfer. But Watt made it clear that the environmentalists will be monitoring the transfer. "Because we want the land transfer to succeed, we are accepting the county's assurances in a leap of faith. For now." The donated land includes land that is part of the largest Natural Communities Conservation Plan in Orange County, the central/coastal subregion NCCP. The NCCP was formed in the 1990s, to set aside open space land for endangered and threatened species in the region, including the California Gnatcatcher and Cactus Wren, and to allow development on other land. The donated land includes areas that have been designated as both California and National Natural Landmarks for their outstanding geological and biological features. Of the 20,000 acres transferred by the Irvine Company to Orange County, 9,500 acres is in the Central Coastal subregion NCCP, according to Michael O'Connell, executive director of the Irvine Ranch Conservancy. The transferred land is nearly five times the size of Los Angeles' Griffith Park and dwarfs the 843 acres of New York's Central Park. In contrast, Yosemite National Park is 761,000 acres. "From my own perspective, this gift is largely unprecedented," said O'Connell.  "There have been large donations of land to the public throughout California's history, and they have all become places are cherished today and will be into the future. The difference here, however, is that instead of being way up North somewhere or out in the remote Sierras, this land is right in our own backyard." He added, "It's big, and incredibly valuable, piece of nature that's close by and can be experienced and cared for as a part of the community, as opposed to a place you have to take a vacation and go visit. The land is valuable that I doubt funding could have ever been raised to buy it." Silver of the Endangered Habitats League said much of the transferred land has been damaged due to extensive cattle grazing and mammoth fires that have burned through the area. Contacts: Marisa O'Neil, Public Information Officer, OC Parks, (714) 973-6870 John Christensen, Irvine Company spokesman (949) 720-2000 Michael O'Connell, executive director, Irvine Ranch Conservancy (949)735-0394 Dan Silver, Executive Director, Endangered Habitats League (213)804-2750

A City of Los Angeles ban on certain outdoor advertisements has been upheld by the Ninth U.S. Circuit Court of Appeals. In  World Wide Rush, LLC, v. City of Los Angeles  the unanimous three-judge appellate panel overturned a lower court ruling in favor of companies seeking to prevent the enforcement of the signage ban. Despite its deep connections to both the media and car culture, the City of Los Angeles generally prohibits several classes of advertisements that encroach on the public realm: billboards that face a freeway, supergraphics (massive images that cover the sides of tall buildings), and conventional off-site billboards. However, the city has adopted a few exceptions to the prohibitions. For instance, it permits all three classes of advertisement in areas where specific plans are adopted to govern such signs or where the signs are permitted by development agreements. Advertisers have, however, been happy to push the limits of these restrictions, and for years, the city has battled advertising companies over disputed signs – many of which are clearly illegal and yet remain standing. In 2009 the Ninth Circuit upheld the city's off-site sign restrictions, ruling that they did not unconstitutional favor some speech over other speech ( Metro Lights, LLC v. City of Los Angeles , 551 F3d 898; see  CP&DR Legal Digest , February 2009 ).  More recently, the city has battled with companies that have erected supergraphics and other lighted signs visible from freeways all over the city. In 2008, the Los Angeles City Council adopted a ban on new supergraphics and off-site signs. The advertising companies in  World Wide Rush  sued the city to block enforcement of the sign bans. The companies argued that the freeway-facing sign ban was unconstitutional because it restricted commercial speech. This approach was unconstitutional, the companies argued, because the city had permitted some freeway-facing signs despite the ban, such as electronic signs next to Staples Center in downtown. The plaintiffs argued the supergraphic and off-site sign bans were unconstitutional on their face because exceptions provided by specific plans and development agreements gave the City Council direction to favor certain speech. The favoritism, they argued, was an unconstitutional "prior restraint" of free speech. District Court Judge Audrey Collins ruled for the advertising companies and enjoined the city from enforcing the bans. The Ninth Circuit reversed Collins. The Ninth Circuit first addressed the freeway-facing sign ban, which the city approved to limit motorist distractions and improve aesthetics. The court held that the city's exception to permit the billboards next to Staples Center and in a 15th Street special use district did not undermine the city's interests in aesthetics and safety. Instead, the court concluded the city's exceptions were reasonable in light of the benefits of redevelopment of a blighted area and a deal to get rid of billboards elsewhere in the city, thus creating a net loss of such advertisements. Because this case revolves around restrictions on commercial speech, the  Central Hudson  case applies. In  Central Hudson , the Supreme Court applied a four-part test to determine the constitutionality of a restriction on commercial speech. In applying the test to this case, the Ninth Circuit court framed the question as follows: Do the ban exemptions granted by the city contradict the city's argument that it has a substantial interest in regulating billboards for the safety of its citizens and the beauty of the city? Holding that the ban exemptions did not undermine the city's substantial interests in safety and aesthetics, the court reasoned that allowing the freeway signs near Staples Center was a key part of eliminating blight in the area, and that permitting the sign district on 15th Street – in exchange for removing signs on Santa Monica Boulevard – actually resulted in the elimination of multiple existing billboards along Santa Monica Boulevard. "The city reasonably may have concluded that, on balance, safer and more attractive thoroughfares would result from renovations to Santa Monica Boulevard and a reduction in the city's total number of billboards, even if this required installation of some freeway-facing billboards along 15 th  Street," Judge Kim McLane Wardlaw wrote for the court. "The city also reasonably may have concluded that the benefits of redeveloping and attracting people to an otherwise dangerous and blighted downtown area outweighed the harm of additional freeway-facing billboards restricted to that area." In addressing the second issue – whether the city could employ various exceptions in the ordinance banning supergraphic and off-site billboards – the Ninth Circuit held that the city was well within its discretion to grant exemptions to the ordinance, as the prior restraint doctrine did not apply. The court reasoned that because the City Council's power to authorize the exceptions to the sign bans arises out of the police power – and not from the bans themselves – the City Council had the authority to exercise discretion. The Case: World Wide Rush, LLC, v. City of Los Angeles , No. 08-56454, 2010 DJDAR 7787. Filed May 26, 2010. The Lawyers: For World Wide Rush: Rex E. Heinke, Akin, Gump, Strauss, Hauer & Feld, (310) 229-1030. For the city: Kenneth T. Fong, city attorney's office, (213) 978-8235. CP&DR's Legal Digest is produced in partnership with Abbott & Kindermann LLP .

Amid budget shortfalls and a development drought, California cities and counties have stopped planning. But they haven't stopped coding. Form-based code fever is still in full force throughout California. From north to south, cities – and, occasionally, counties as well – are using a good portion of their meager planning money to create form-based codes. Sometimes these codes are being created citywide, but more often they are focused on downtowns, older corridors, dead mall sites, and other locations designated for higher density or mixed-use development. Why are local governments so hot for form-based codes? And in a seriously down economy, can simply rewriting zoning codes stimulate private development, as so many of its proponents seem to suggest? The answer is yes and no. It's true that form-based code fever is the result, partly, of brilliant and aggressive marketing by New Urbanism evangelists. But viewed more broadly, the form-based code craze is part of a larger movement to update outdated codes of all kinds – for a variety of reasons. The form-based code does not really represent a revolution, as some of its most strident evangelists suggest. Instead, it's part of a larger movement to bring confusing and outdated ordinances into the 21 st  Century – and, even more broadly, a movement in planning to focus more on implementation. The typical zoning code is just about the most archaic, confusing – and intrusive – set of regulations imaginable. It's long, complicated, and full of legalese. It has been amended incrementally over time. It often covers situations and topics that don't even exist anymore – or else devotes dozens of pages to some topic that was controversial 30 years ago. It's not uncommon to have to flip around the entire code a dozen times to pick up all the references required for a particular situation. Sometimes, it's not even clear what type of permit approval is required or even who is doing the approving. Little wonder, then, that planners typically cheer at that dramatic moment in the Andres Duany stump speech when Duany takes an enormous loose-leaf code book and chucks it in the trash can. And it's not surprising that understandable codes with lots of visuals are becoming more popular – especially at a time when design is becoming more important in planning and development. But do form-based codes cure cancer? Or otherwise solve all problems in the world of planning and development? No, they don't. In fact, form-based codes really aren't a completely different type of animal from "conventional" zoning codes. They're still regulations that seek to control the form, use, and management of private real estate development projects. The difference is a matter of emphasis – more detail about form, less about use. And so it's probably best to think of a form-based approach at one end of a continuum – with a use-based approach on the other end. A form-based code simply acknowledges what developers and their architects have known for decades: Whether illustrated or not, all zoning ordinances contain "pictures" of the buildings they permit. Embedded in the text of the typical zoning ordinance are setbacks and height limits that create an allowable building envelope. If you add a special design overlay district – not uncommon in certain locations – then you get a conventional approach (albeit clumsy) that is not that different from a form-based code. Where form-based codes do begin to look pretty different from the conventional approach is the way they are organized. Instead of focusing entirely on the individual parcel, form-based codes focus on types of buildings and on the overall feel of each block. The typical form-based code has a typology of building types – mostly depicting a variety of multi-family, mixed-use, and commercial buildings – and then specifies which of these types will be permitted on each block. In this sense, form-based codes  are  revolutionary; they are concerned with a larger canvas than just the parcel. By being extremely prescriptive, form-based codes do ensure a consistent look and feel to the physical form of a particular neighborhood, corridor, or development project. That's good. But in and of itself a form-based code does not solve all problems associated with zoning codes specifically or with planning more generally. First, the typical form-based code doesn't solve the "flipping around" problem so typical of zoning ordinances. It's just a different kind of flipping around. You have to match the building types with the type of street with the type of district or corridor. This can be no less confusing than flipping around in a conventional code. And because form-based codes are often district-specific, amendments can be complicated because you may have to amend several adopted codes, not just one. Second, form-based codes don't – and can't -- solve concerns about land uses simply through form. By focusing on design, form-based codes can solve problems associated with context, especially in urban situations where you simply must design your way out of conflict. But even in a form-based code, a city or county must consider the allowed uses carefully. It's easy to get  too  loose on use in a form-based code, so that uses with a big impact on the community get overloooked. Finally, cities often make the mistake of thinking that if they adopt a form-based code, they don't have to do anything else to make a mixed-use or urban neighborhood work. But that's not true – especially when it comes to parking. Form-based codes often permit less parking at the parcel level. But codes don't – and can't – deal with the district-level question of how to provide enough parking. Indeed, one of the most common mistakes a city makes in adopting a form-based code is in restricting parcel-level parking without regard to whether enough pooled parking exists in the district. That's why a form-based code usually needs to be accompanied by a parking management plan. Perhaps most significantly, a form-based code can't create a market for development where none exists. It's still a set of regulations – and like all land use regulations a form-based code works best when it is expected to shape and sculpt existing demand to create a better urban environment. Sure, there's some benefit to developers in creating more certainty about zoning and design, but form-based codes more or less assume that the demand already exists. It's worth bearing in mind that Duany himself began writing form-based codes not for local governments but for developers who wanted a consistent look and feel to their projects. There's no question that nowadays we have to design our way around problems that, in the suburban era, we could simply solve by putting more space between things. This requires a more design-oriented approach to planning and development generally. And there's no question that we must update and simplify codes with an eye toward how they are used when development projects are proposed. But in and of themselves, form-based codes are no replacement for plans, for parking policies, or for conventional concerns about land uses. Like most advances that are touted as revolutionary, form-based codes are most effective when they are used to solve the problems they can solve -- and not expected to cure cancer or the common cold.

Enroll Now for Fall Quarter The UCLA Extension Public Policy Program has opened enrollment for Fall Quarter. Online enrollment is available by visiting www.uclaextension.edu and referencing the Reg#. Conferences: 25th Anniversary of The Land Use Law and Planning Conference (V9336) Friday, Jan 21, 2011 Fall Courses: New! Water Rights and Sustainability* (V9164 - Online) Sep 20 - Dec 6 Jennifer Harder , Adjunct Professor, UC Davis School of Law New! Renewable Energy Economics and Policy* (V8841 – Quarter long) Sep 22 - Dec 8 Wednesday nights, 7-10 pm  Ryan Matulka , Research Project Manager, Lewis Center for Regional Policy Studies, UCLA Sustainability Ethics* (V9288) Sat, Sep 25 Helene Smookler , Of Counsel, The Sohagi Law Group, PLC New! Local Economic Development, Planning, and Policy (V9252 - Online) Sep 28 - Dec 14 Edward Blakely , Honorary Professor of Urban Policy, United States Study Centre, University of Sydney, Australia Cultural Resource Protection under CEQA and Other Legislative Mandates* (V8604) Fri, Oct 1 Ken Bogdan , Environmental Counsel and Project Manager, ICF International New! Developing and Integrating Bicycle Plans* (V8810) Thu, Nov 4 Ryan Snyder , President, Ryan Snyder Associates, LLC Successful CEQA Compliance* (V8600 – 2 day) Thu & Fri, Dec 9 & 10 Ron Bass , Senior Regulatory Specialist, ICF International Al Herson , Environmental Planner and Attorney Keep in touch with the latest issues and trends! Visit our blog. http://uclaextensionppp.wordpress.com/   Follow us on Twitter.  www.twitter.com/unexpubpol *Approve elective, Global Sustainability Certificate Individual, group, and student discounts are available. All courses are approved for CM (AICP) credit.  For complete course information visit www.uclaextension.edu/publicpolicy . For questions and additional information contact program representative Jason Van Patten at jvanpatt@uclaextension.edu or call (310) 825-7885.

I was trying to figure out a way to summarize the 2009-2010 session of the California Legislature when I found a summary upon which I could not improve. In its September 3 edition of "Framing the Issues," the affordable housing advocacy group California Housing Law Project nailed the situation. Under the headline "No Budget … No Money … No Legacy … Failed Policy," was this: "Is it too cynical to state that the only good thing to be said about the 2009-2010 legislative session is that it's mercifully over? The Legislature failed to enact a budget this year (although they enacted three last year, none of which worked), failed to address enormous policy issues, including education, pension reform, health care, housing and environmental issues, while frittering away the final days and hours with legislation to ‘save' horse racing, playing word games and the classic pursuits of revenge and name-calling. Cause for cynicism?" I think we may safely conclude the two-year session was unsatisfactory for affordable housing advocates, although they did win passage of AB 602 with bipartisan support. As amended, the bill would extend the statute of limitations for suing over a housing element from 90 days to five years. The affordable housing lobby is hardly the only group frustrated by the Legislature's inaction. Very little significant land use legislation won approval during 2010. No substantial California Environmental Quality Act bills passed, despite the opinion of some alleged expert that this was the year lawmakers would roll back CEQA . Even the CEQA funny business at session's end on behalf of Wal-Mart failed.  Other than a free pass for a football stadium and massive commercial complex in Industry -- although an exemption for another football stadium turned out to be a rumor -- the most important land use legislation of the two-year session was, in fact, water legislation. Lawmakers approved a package of water bills during the fall of 2009 that, among other things, created a new council to unite all Bay Delta policy. However, the package also included an $11.1 billion water bond for the November 2010 ballot. At Gov. Schwarzenegger's urging, lawmakers in early August agreed to postpone the bond election until 2012. Water policy and investment could have been this Legislature's legacy, but even that has been diluted. So, let's review the Housing Law Project's headline. No budget? Check. No money? Check. No legacy? Not much. Failed policy? More like no policy. I recognize California is in a pickle because of a lingering recession over which the Legislature and the administration have no control. But, as experienced managers are inclined to say, you don't ever want to waste a perfectly good crisis. A crisis provides the cover for reconsidering standard practices and for making hard decisions that individuals and organizations would otherwise avoid. Crisis wasted? Check. – Paul Shigley

Maybe there is reason to hope we can get development right in the future. That's the conclusion I draw after looking over the list of projects that the state Department of Housing and Community Development (HCD) recently named "catalyst projects." It's largely rhetoric, the state has put its seal of approval on -- and given valuable publicity to -- some promising, progressive projects. In general, projects are mixed-use, mixed-income infill projects that attempt – to varying degrees – to de-emphasize the automobile and improve the public realm. It's nice to see the state recognize the planning behind such projects, even if the state isn't willing to attach much money to that recognition. A little background: Early this year, HCD, Caltrans and the Department of Conservation sought applications from cities and counties for the pilot project. The application stated: "Approximately six development projects will be selected as Catalyst Projects in communities throughout California to incentivize sustainable communities and test innovative strategies designed to increase housing supply and affordability; improve jobs and housing relationships; stimulate job creation and retention; enhance transportation modal choices that reflect community values, preserve open space and agricultural resources; promote public health; eliminate toxic threats; address blighted properties; reduce greenhouse gas emissions and increase energy conservation and independence." After a review process that seemed to drag, HCD on August 24 named not just six catalyst projects, but instead  selected 13 projects . A pleasant surprise. The projects are divided up at three different levels: Gold: • City of Emeryville, Emeryville Marketplace • City of San Francisco, Mission Bay • City of Sacramento, Township Nine • City of San Diego, Village at Market Creek • City of Fullerton, Fullerton Transportation Center   Silver: • City of National City, Paradise Creek Revitalization • City of Chico, Meriam Park • Town of Truckee, Truckee Railyard • City of Marina, The Dunes on Monterey Bay • City of Ontario, Downtown Core Catalyst Project   Bronze: • City of Oxnard, North Oxnard Communities • City of San Diego, Quarry Falls • City of Hercules, Bay Front Transit Village Each gold project is eligible for a $1.35 million Proposition 1C affordable housing grant, while the silver projects may receive $500,000 each, according to HCD spokeswoman Panorea Avdis. A source who works in the administration told me that she had been skeptical of the program, but she came away with a positive feeling because of the projects themselves. By demonstrating that some cities and developers are willing to depart from California's tired suburban growth pattern, the projects should serve as models for meeting the state's sustainable growth goals, she told me. In a written statement, HCD Director Lynn Jacobs said as much: "This pilot program will provide valuable insights to allow the State to implement best practices and strategies as we move forward with our sustainable development goals in California. Walkable communities, improved air quality, reduced emissions, less time spent in a car and a strong economy can all become reality through sustainable development, and I look forward to seeing how these projects develop." I, too, am interested in how these projects develop, so I checked in on one of them – Meriam Park in Chico. Planned for about 270 acres on the southeastern edge of town, the project would have about 2,300 housing units, at least 1 million square feet of civic and institutional uses, and about 250,000 square feet of commercial space. The project appears to have just about every new urbanist bell and whistle – a walkable grid, alley-loaded housing, minimal setbacks, neighborhood parks and greens, a wide mix of uses and housing types. Meriam Park is intended to replicate Chico's excellent downtown and delightful older neighborhoods – and to depart from Chico's more recent suburban blandness. Although a full three years has passed since the Chico City Council approved the project, and local developer New Urban Builders has a reputation for completing first-rate projects , the project hasn't gone far because of the economy. Construction is under way on 90 units of affordable housing, and ground should break soon for a new north Butte County courthouse. "We're bullish long-term, but we're not going to put more infrastructure in the ground that we think is prudent," said John Anderson, of Anderson/Kim Architecture + Urban Design and Meriam Park's chief designer. The $500,000 for affordable housing is nice, but it's not going to make much difference. Still, the HCD recognition could open other state funding doors, according to Avdis. "What we were looking for was the designation," explained Chico Assistant City Manager John Rucker. "We see it as a pretty innovative, sustainable project, and we're looking for a number of ways to make it work. We want to position ourselves so that we can take advantage of funding when it does become available." Anderson said the project could be well-positioned to receive federal grants from the interagency partnership of Housing and Urban Development, the Department of Transportation and the Environmental Protection Agency. Let's hope government funding and incentives for Meriam Park and the other catalyst projects emerge quickly. It's one thing for state and federal officials to tell cities and counties they should grow in a more sustainable fashion. It's quite another to provide the money that makes such growth actually happen. – Paul Shigley

My nephew and his wife recently had their second child, and they are following a well-worn path from the city to the suburbs. Four years ago, childless and carless, they lived the urban life in the fashionable Washington, D.C., neighborhood of Cleveland Park. Child No. 1 pushed them four miles out, to the expensive inner Maryland suburb of Bethesda, where they bought a cozy two-bedroom condominium that had been converted from an apartment. Then, a couple of months ago, Child No. 2 pushed them another 12 miles farther out – beyond the Beltway – to Rockville, where they bought a four-bedroom, 2,200-square-foot house. Now they are living the suburban life – which means, inevitably, a large yard, two or three cars, and an autobound life for all concerned, including their infant. Right? Well, not exactly. Yes, Eric and Kate have headed for the suburbs. But their life isn't really very autobound at all. Suburbia to them means an end-unit townhome, one car, a daily bus trip to day care, a 10- to 15-minute walk to the library and shopping at Rockville Town Square, and D.C. Metro commutes (13 minutes for him, 30 for her) to work and back. This is America's New Suburban Dream. In a lot of ways, it's just like the old one – the familiar scramble for a great school district, a lot of square footage, distance from urban grittiness, and proximity to schools, parks, and libraries. But in important ways it's different. When they say they live close to the playground, they don't mean it's five blocks to a city park; they mean it's 30 feet from their barbeque, across the common area of the townhome development. When they say they've traded proximity for space, they don't mean they have to drive five miles to the store. They mean that by living 1,000 yards away from the Rockville Metro Stop – instead of 100 yards – they can get a four-bedroom townhome instead of a two-bedroom condominium. It's not an urban life, exactly. Their townhome development – dating from the early 1980s – is not exactly a New Urbanist's dream. It's basically a cul-de-sac development bounded on two sides by strip shopping centers. The streets look a lot like parking lots and it's not all that easy to walk along the sidewalks in and of the development, as Eric and Kate often do. It's more Clarence Stein than Andres Duany. Clearly, it was designed to accommodate people expecting to drive to the Red Line station when it opened in 1984. Yet even with these drawbacks, it has an appealing combination of suburban feel and urban access. And their life is not so urban that they've abandoned their car. The car is an essential component of life on most days – especially to shuttle the kids around, run weekend errands, and, of course, go on vacation. But Eric and Kate use the car differently. The trips are mostly short and it's possible to go a couple of days without using the car at all. But that doesn't necessarily mean their life is devoid of the good things. A walk of about 15 minutes will take them to the center of Rockville – a surprisingly rich and urbane place and becoming more so all the time. Rockville is the county seat of Montgomery County – an affluent and politically liberal county of almost 1 million people – so there have long been tall office buildings in the downtown. More recently, the city, the county, and private developers – including Federal Realty – teamed up to transform a former in-town shopping mall into Rockville Town Square , a surprisingly dense downtown development project with a library, an "arts and innovation center," shops, and 6-story mixed-use buildings. Not surprisingly, the upper-floor condos aren't doing well at the moment, but the whole thing is walking distance from the Metro station – and from Eric and Kate's townhome. DuPont Circle or Cleveland Park it's not, but there's enough going on to keep most people – especially most family-oriented people – more than busy. The walk from Rockville Town Center to the townhome is filled with close-up views of parking lots and strip centers along Maryland 355. This is exactly the kind of property that infill developers and planners salivate over as they think of multi-story mixed-use projects, which in turn terrifies most suburbanites, who fear ever-more-frightening traffic infestation. Amazingly enough for suburbanites, however, Eric and Kate don't seem to be afraid of more urban-style development creeping toward their townhome neighborhood. Most smart growth evangelists would say that's because they understand the typical party line – that a walkable neighborhood works better as it gets denser, unlike an auto-oriented neighborhood, which breaks down because of traffic congestion when more development arrives. That's true enough – though it's kind of a nerdy way to put it. I'd guess Eric and Kate would think of it differently. To them, living in the suburbs revolves not around driving but around living. Though it's far from perfect, Rockville allows Eric and Kate and their kids to focus on living. Which, I think, has been the point of suburbs from the beginning.

Overview A development project in Redding that would destroy critical habitat for endangered species may proceed because the affected habitat constitutes a small percentage of habitat available nationwide, the Ninth U.S. Circuit Court of Appeal has ruled.  The Ninth Circuit's decision puts a new twist on the debate over what constitutes "adverse modification" to critical habitat by upholding a black and white mathematical percentage formula applied by the U.S. Fish and Wildlife Service (FWS). Using the formula, a FWS biological opinion determine there would not be adverse modification or destruction of critical habitat of three species native to the Central Valley. "The FWS's determination that critical habitat would be destroyed was not inconsistent with its finding of ‘no adverse modification,'" Judge Diarmuid O'Scannlain wrote for the court. "After all, the project would affect only a very small percentage of the total critical habitat or vernal pool fairy shrimp, vernal pool tadpole shrimp, and slender Orcutt grass." Formal consultation under Section 7 of the federal Endangered Species Act is required when the property for which a federal permit is sought contains federally listed species or designated critical habitat that may be affected by the permit decision. If formal consultation is required, FWS or the National Oceanic and Atmospheric Administration will issue a biological opinion stating whether the permit action is likely to jeopardize the continued existence of the listed species, or adversely modify or destroy its critical habitat. The Case In this case,  Butte Environmental Council v. U.S. Army Corps of Engineers,  the City of Redding sought a Clean Water Act permit to fill wetlands. In 2005, after years of researching potential sites for development of a business park, the city issued a draft Environmental Impact Statement regarding the proposed 678-acre Stillwater Business Park located on wetlands along Stillwater Creek. In December 2006, the Fish and Wildlife Service issued a biological opinion on the project. The opinion stated that more than half of the project site contained habitat deemed critical for species that inhabit vernal pools, small ponds that form during the winter rainy season. The project site contained 356.6 acres of critical habitat shared by the vernal pool fairy shrimp (threatened) and the vernal pool tadpole shrimp (endangered). The project would destroy 234.5 acres of this critical habitat. It would also directly affect 0.56 acres and indirectly affect 6.42 acres of the crustaceans' aquatic habitat. The site also contained 500 acres of critical habitat for slender Orcutt grass, 242.2 acres of which would be destroyed. In calculating the loss of each species, the biological opinion applied a percentage comparison to total nationwide critical habitat. For the fairy shrimp, the 234.5-acre destruction amounted to only 0.04% of the total existing 597,821 acres of the nationwide inventory of fairy shrimp critical habitat. As to the tadpole shrimp, the 234.5 acres that would be destroyed amounted to 0.1% of the 228,785 acres of total critical habitat nationwide. The 242.2 acres slender Orcutt grass habitat to be destroyed amounted to 0.26% of the plant's total nationwide critical habitat of 94,213 acres. The FWS's conclusion was that "the proposed project would not result in the adverse modification or destruction of critical habitat for those species." Butte Environmental Council, a nonprofit environmental organization, filed suit against the U.S. Army Corps of Engineers, which issued the Clean Water Act permit, and FWS. The district court granted summary judgment in favor of the federal agencies. Butte Environmental Council then appealed to the Ninth Circuit. Arguments & Opinions The council raised four arguments, each of which was rejected by the Ninth Circuit. First, the council argued that FWS applied an improper definition of "adverse modification" that did not account for the recovery needs of the affected species as required under  Gifford Pinchot Task Force v. U.S. Fish and Wildlife Service , (9th Cir. 2004) 378 F.3d 1059. The court rejected the council's assertions, noting that the biological opinion expressly stated that it "does not rely on the regulatory definition of ‘destruction or adverse modification'," but instead relies on the statute itself and the  Gifford  decision to complete the critical habitat analysis. Second, the council asserted that the finding of "no adverse modification" conflicted with the FWS's finding of acreage to be destroyed as part of the project. In rejecting this argument, the court noted that  Gifford  did not alter the rule that adverse modification occurs only where there is a "direct or indirect alteration that appreciably diminishes the value of critical habitat" (50 C.F.R. § 402.02.). Judge O'Scannlain further opined that "an area of species critical habitat can be destroyed without appreciably diminishing the value of the species' critical habitat overall." The court concluded that FWS's determination that critical habitat would be destroyed was, therefore, not inconsistent with a finding of "no adverse modification." Third, opposing the formula applied by FWS, the council argued that the focus on the project's impact to the species' nationwide inventory of critical habitat "mask the project's localized impact." The court swiftly disposed of this argument, stating that there was nothing in the record to demonstrate that a localized risk was improperly hidden by use the of the large-scale, nationwide comparison and analysis. In its fourth and final argument, the council faulted the FWS for failing to address the rate of loss of critical habitat for each of the species at issue. There is, however, no obligation in either the Environmental Species Act or its implementing regulations for the FWS to calculate a rate of loss. Therefore, the court concluded that FWS's finding of no adverse modification was neither arbitrary nor capricious, where the FWS applied the proper definition of adverse modification and reasonably concluded that the effects of the proposed project would not appreciably diminish the value of the critical habitat. The Case: Butte Environmental Council v. U.S. Army Corps of Engineers,  No. 09-15363, 2010 DJDAR 8115. Filed June 1, 2010. The Lawyers: For Butte Environmental Council: Donald Mooney, (530) 758-2377. For the Corps of Engineers: Kurt Kastorf, U.S. Department of Justice,  (202) 514-2701. For the City of Redding: Rick Jarvis, Jarvis, Fay, Doporto & Gibson, (510) 238-1400.