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In the latest decision on a long series of legal challenges by Peninsula cities and environment groups to the California High Speed Rail project, the Third District Court of Appeal has upheld the final programmatic environmental impact report for the portion of the project that calls for a route from the Central Valley over the Pacheco Pass into Bay Area suburbia. Perhaps most significantly, the Third District, in Town of Atherton et al. v. California High Speed Rail Authority , C070877, ruled that the programmatic EIR does not need to consider specific proposals for a vertical alignment of the rail route along the Peninsula, even though options for that vertical alignment were identified before the PEIR was finalized. Writing for a unanimous three-judge panel, Justice Elena Duarte relied heavily on the California Supreme Court's ruling in In Re Bay-Delta etc. , 43 Cal.4th 1143 (2008). In that case, the Supreme Court ruled that the Bay-Delta project - a 30-year program to restore the ecological health of the Sacramento-San Joaquin Delta - did not have to identify specific water sources to implement the CALFED program in the programmatic EIR. " Justice Duarte quoted the Supreme Court as saying that requiring more specific detail "undermines the purpose of tiering." She added: "That such project-level analysis occurred before the program EIR was certified did not require in Bay-Delta , and does not require here, inclusion of the analysis in the program EIR." The Third District also rejected claims that a supposedly faulty ridership-revenue analysis and failure to include an alternative through Altamont Pass, rather than Pacheco Pass, invalidated the PEIR. The court also ruled that the plaintiffs' lawsuit was not pre-empted by federal law. On the ridership-revenue issue, the plaintiffs jumped on the well-publicized dispute (see http://lat.ms/1nPIJaV) over ridership methodology between Cambridge Systematics, which prepared the ridership projections, and UC Berkeley's Institute of Transportation Studies, which conducted a peer review of Cambridge's analysis. ITS acknowledged that Cambridge had "followed generally accepted professional standards" but highlighted one methodological concern, which was that Cambridge had used some assumptions typically associated with intra-regional travel, even though High Speed Rail would be an inter-regional service. Cambridge claimed it had changed the methodology to conform to recent observed data from travel surveys. The court found the plaintiffs had not proven their case and that the issue was "a dispute between experts that does not render an EIR inadequate" under CEQA Guidelines Section 15151. The Altamont Pass alternative argument was perhaps the most technical. The plaintiffs argued that the High Speed Rail Authority was required to consider a broader range of alternatives as a result of a previous court ruling in an earlier phase of the litigation because Union Pacific opposed use of its right-of-way for the Pacheco Pass alternative. A group called Altamont Advocates hired a firm called Setec to put an Altamont Pass alternative on the table. The plaintiffs in the Atherton case said the Authority erred in not including Setec's alternative in the PEIR's alternatives analysis. The court's discussion of the Altamont Pass alternative included several highly technical discussions. Among other things, however, the court concluded that the Altamont Pass alternative was similar to other alternatives considered in the PEIR. For example, the Altamont alternative would require replacement or expansion of the currently unused Dumbarton rail bridge across San Francisco Bay. Although the PEIR didn't consider the specific Setec alternative, it did analyze the Dumbarton bridge in its alternatives analysis and concluded that the Pacheco route, which requires no Bay crossing at all, is preferable - because, among other things, of the impact on the Bay and the Don Edwards San Francisco Bay National Wildlife Refuge. The Setec alternative tried to get around this by proposing a variety of mitigation measures, but the court knocked that argument down by saying: "The Setec proposal offered only some possible mitigation measures and it failed to address the concerns about endangered and threatened species and construction through the wetlands of the Refuge. The Authority was not required to consider anew an alternative it had already considered and reasonable rejected." On the pre-emption issue, the High Speed Rail Authority had argued that the Interstate Commerce Commission Termination Act pre-empted state law. The court found that under the "market participation doctrine" - which distinguishes between the state's role as a regulator and the state's role as a market player - High Speed Rail qualifies for an exemption from federal pre-emption. In other words, because the state is building the project, rather than regulating a private railroad building the project, it is subject to CEQA. The Case: Town of Atherton et al v California High Speed Rail Commission , C070877 (filed July 24, 2014). See http://www.courts.ca.gov/opinions/archive/C070877.PDF. For the High-Speed Rail Authority's documents on the Bay Area to Central Valley route via Pacheco Pass see http://www.hsr.ca.gov/Programs/Environmental_Planning/bay_area.html.

The First District Court of Appeal has upheld the EIR supporting a $1.5 billion development plan for Treasure Island, the man-made former World's Fair site at the middle of the San Francisco Bay Bridge. The court rejected the challengers' claim that the EIR for the project should have been prepared as a program-level EIR (i.e., with subsidiary EIRs for individual projects to follow later), but that it instead was improperly prepared as an insufficiently detailed project-level EIR. The court found the substance mattered more than the title, and the actual detail in the document was enough to qualify the EIR as adequate. (Earlier in July the Sixth District similarly shrugged off the program-project distinction and focused on the facts in the San Jose Airport EIR addendum, as discussed separately in this issue. See http://www.cp-dr.com/articles/node-3526.) The project calls for up to 8,000 housing units, plus hotel, office and commercial space. It's important that, as the court noted, the EIR requires the Navy to finish its toxic cleanup work on every land parcel before transferring it to the Treasure Island Development Authority for new use. Plans to build dense housing on Treasure Island, and decisions to house poor people there in recent years, have been criticized based on concerns about incomplete cleanup of hazards left by prior military uses, from mold to asbestos to radioactivity. (See http://bit.ly/1wtS7jP and http://bit.ly/O0JZHG.)

In many situations, the settlement of a lawsuit is a flexible tool to resolve disagreements between parties and allow the participants to move on with their lives. A settlement with a public agency invokes slightly different considerations then a matter resolved exclusively through private parties. As previously noted in Trancas Property Owners Association v. City of Malibu (2006) 138 Cal.App.4th 172 , a public agency cannot rely upon a settlement agreement to bypass a required land use approval step.

Cities' ability to control their streets' aesthetics may be affected by a June 18 U.S. Supreme Court ruling on content-based regulation of signage, but perhaps not as drastically as they had feared.

In an important victory for local governments, the Third District Court of Appeal has ruled that the state Department of Finance improperly rejected Emeryville's action to re-enter into several redevelopment agreements with its successor agency.

Despite a budget deficit so large that it triggered the first gubernatorial recall in California history, the administration of Gov. Gray Davis has shown scant interest in stimulating the economy. But with the chaos in Sacramento – and the fact that elected officials have a smaller and smaller role to play in actually shaping the state’s budget – it may be that no California governor can devise an effective economic development strategy.

In light of a similar ruling by the California Supreme Court in a case from San Diego, the First District Court of Appeal has ordered Cal State East Bay to revisit the question of offsite traffic mitigation in the environmental impact report for its long-range master plan. As the Supreme Court did in San Diego, the court ruled that Cal State cannot simply declare mitigations infeasible unless the state legislature appropriates funds specifically for that purpose.

San Bernardino County is not entitled to the return of $9 million in loan principal to the former county redevelopment agency, even though the funds were not tax-increment revenues and had come from the county's general fund, the Third District Court of Appeal ruled Monday.

A state appellate court has ruled that financial incentives the City of La Mirada provided to Corporate Express violated a state law intended to prevent cities from poaching sales tax-generating businesses from neighboring jurisdictions.

A couple of weeks ago, the satirical newspaper The Onion reported that the City of San Francisco was looking to relocate because its current location had become too expensive. Funny though this was, I expected the follow-up story to focus on the economic development incentive package being put together to keep San Francisco where it is.

The City of Newport Beach improperly permitted a councilmember who was openly opposed to a bar's permit to appeal the planning commission's decision granting the permit and to vote on the permit appeal, the Fourth District Court of Appeal has ruled. The appellate court also ruled that the trial court should not have granted the city a preliminary injunction to block the bar from operating under the permit approved by the planning commission.

The division of one parcel into four noncontiguous pieces via eminent domain does not automatically create four legal parcels and permit the landowner to avoid the Subdivision Map Act, the First District Court of Appeal has ruled.