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In case you missed the recent legal tremor, be advised that land-use lawyers are looking closely at a new appellate court ruling from Tuolomne County on the application of the California Environmental Quality Act to citizen initiatives. The new ruling is in direct conflict to a ruling from a different appellate district in 2004, possibly setting the stage for a showdown in front of the California Supreme Court. In Tuolumne Jobs & Small Business Alliance v. Superior Court (Wal-Mart Stores, Inc.) (October 30, 2012, F063849) ___Cal.App.4th ___ the facts involve the efforts of Wal-Mart to seek an expansion of an existing store in the City of Sonora. An EIR was prepared by the City, and the Planning Commission recommended approval. Before the matter was considered by the City Council, an initiative was filed, the effect of which would change the land use regulations on the Wal-Mart parcel and dispense with the need for a discretionary permit - thus making it easier for Wal-Mart to obtain approval. Once the city determined that the initiative petition contained the requisite number of signatures, the City Council had two basic choices: enact the measure as its own without modification or place it on the ballot. With the belief that CEQA did not apply, the City Council chose the former option and enacted the initiative measure as its own. Litigation challenging the approval ensued, including a claim that the City Council was required to complete the CEQA process first. The City and Wal-Mart demurred to the petition/complaint, which the trial court sustained, effectively upholding the city's action. The petitioners, Tuolomne Jobs and Small Business Alliance, then filed a writ petition with the Fifth Appellate District, which granted, effectively reinstating the CEQA claim at the trial court. The City and Wal-Mart argued strenuously to the appellate court that the city's actions were ministerial and that the published court decision in Native American Sacred Site & Environmental Protection Association v. City of San Juan Capistrano (2004), 120 Cal.App.4th 961 , had settled the question. In that case , the Fourth District Court of Appeal upheld San Juan Capistrano's decision to enact a zone change initiative, rather than putting it on the ballot, was not subject to CEQA. Based on these arguments, the City of Sonora and Wal-Mart argued that CEQA did not apply to the city council option to enact the measure (as compared to placing the matter before the voters.) The Fifth Appellate District wasn't buying it however, expressly declining to follow Native American Sacred Site and finding the Council was exercising discretion if it enacted the measure as its own. To further cement its disagreement with the Fourth Appellate District, the Tuolumne court then ordered its decision published, potentially setting the stage for resolution by the California Supreme Court. Tuolumne Jobs & Small Business Alliance v. Superior Court (Wal-Mart Stores, Inc.) (October 30, 2012, F063849) ___Cal.App.4th ___

As California seeks to reduce greenhouse gas emissions in the state's industries in order to implement provisions of California's Global Warming Solutions Act of 2006 (Assembly Bill 32), entities and trade groups both inside and outside the state have looked to the "dormant" Commerce Clause in the U.S. Constitution as a legal means to challenge those efforts. The dormant clause implies that states cannot take actions that would, implicitly or explicitly, restrict interstate commerce - such as when California legally compels residents to consume less fuel.

Everybody always loves to complain about the California Environmental Quality Act, but despite all the complaining we don’t now much about how effective it really is and what all the CEQA activity adds up to.

If the oral argument is any indication, the U.S. Supreme Court is likely to rule against a landowner in Florida who filed a takings lawsuit against an Orlando-area water district – turning what appeared to be an easy victory for property rights advocates into a loss.

California's Fifth Appellate District on July 3 upheld the Westlands Water District's 2012 interim renewal contracts for Central Valley Project water from the U.S. Bureau of Reclamation, finding the changes they represented were exempt from CEQA review sought by environmental groups.

In  Quail Lakes Owners Assn. v. Kozina,  the Court of Appeal for the Third Appellate District affirmed a trial court's decision to grant a verified petition by a homeowners' association for an order under Civil Code section 1356. The petition asked to modify the association's governing laws to reduce a supermajority voting restriction.

The right combination of zoning changes and decreased parking requirements can make infill projects feasible in some of the state’s most urban settings. That is the conclusion of Solimar Research Group, which continues to investigate land use options for crowded urban areas. Recently, we explored how regulatory changes affect the financial feasibility of infill projects, and then applied our models to the land use surrounding a major rail extension in Los Angeles. The results should prove interesting to any agency that is approaching the issue of rapid growth with a strategy of high density, transit-oriented development. We sought to calculate the degree to which changes in parking and density policy, as well to zoning, will shrink the notoriously stubborn gap between planning ideal and development reality. Our comprehensive pro-forma analyses revealed that while parking policy affects feasibility more than density allowance, reliance on one or the other is politically unrealistic. A combined strategy is essential. On the other hand, key zone changes may prove a powerful, singular tool in getting infill development off the ground. We further explored how these proposed policy strategies would play out in the very real built environment of the planned Exposition Line extension of the Los Angeles Metro Rail system. Our parcel-by-parcel GIS analysis of infill opportunities surrounding proposed rail stations highlights the infill potential of underutilized industrial land along transit corridors. Grounded Analyses To ensure the “real-time” relevancy of our calculations, we consulted local developers to identify actual development models. Five infill prototypes were selected, and examples of each — from an 8-10 unit townhouse to a 100-200 unit mixed-use project — are currently under construction. We then applied an “as is” pro-forma feasibility model to each, one based on current zoning standards and the industry’s minimum expected 15% net margin. With our feasibility baselines established, we analyzed the fiscal impact of incremental increases or decreases in density and parking requirements. The selection of these two policies as regulatory variables was straightforward: one is a powerful determinant of gross revenue, the other a huge booster of project costs. We also calculated the impact on each prototype of building in either industrial or commercial zones. Combined Regulation Our pro-forma for development prototype 2A exemplifies the political near-impossibility of relying on a single regulation to promote infill in Los Angeles. Prototype 2A is a small, mixed-use project of 54 units, with a current feasibility gap of $1.2 million. A 50% density bonus reduces that gap to only $900,000; a 100% density bonus to only $700,000. While feasibility may arrive with 150% bonus, attendant density, height and FAR changes to the C-1 and C-M zones in which this project would be built are unlikely. Construction of prototype 2A also is unlikely without a change in parking requirements. We found that only a 50% decrease in the number of required parking spaces reduces the $1.2 million gap down to $400,000. That is still too much. But a synergy of more modest changes produces a viable alternative. Our study indicates that a 75% density bonus combined with a 25-50% parking reduction provide enough incentive for developers to pursue projects of this size. This outcome repeated itself in our calculations for prototype developments of various sizes. EXPO Application After calculating needed regulatory and zoning incentives, we took our prototypes to a built environment of high infill potential. The Exposition Line is scheduled for completion in 2010. It will serve an almost entirely developed area. We drew circular study zones around the planned La Brea, La Cienega, Crenshaw, Western and Vermont stations. Our GIS “screening” of parcels around the La Cienega stop reveals a repeated pattern of industrial under-use that, as our pro-formas indicate, should be targeted for infill. Nearly 25% of the half-mile area surrounding the station is zoned industrial/light manufacturing, much of that characterized by large parcels. In addition, many parcels are underutilized and ideal for infill redevelopment. Finally, we identified parcels along the La Cienega Boulevard commercial strip that could be assembled into spaces that would increase the feasibility of projects the scale of Prototype 2A. These projects become even more realistic with the regulatory changes identified above. Solimar’s complete fiscal and land-use analysis of infill potential along the Expo line is available at: http://www.solimar.org/pdfs/Expo_Final_3-30.pdf .