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The First District Court of Appeal has batted down an attempt by the California Building Industry Association to turn CEQA on its head, saying that the passage of significance thresholds is not a project under the environmental law. In so doing, the court concluded that an environmental analysis is not required to examine the environmental impact of the standards used to conduct environmental analysis and assess environmental impact.  In other words, the appellate court ruled that CEQA does not apply to CEQA – at least not in this case. In CBIA v. BAAQMD , CBIA filed a lawsuit under the California Environmental Quality Act after the Bay Area Air Quality Management District adopted new significance thresholds for several pollutants, including a significance threshold for greenhouse gas emissions. The GHG threshold for development projects is 1,100 metric tons of carbon dioxide equivalent or 4.6 metric tons per service population per year. CBIA sued, arguing most importantly that the adoption of significance thresholds is a project under CEQA and therefore should have triggered a CEQA analysis. Alameda County Superior Court Judge Frank Roesch ruled in favor of CBIA, concluding that significance thresholds are "a discretionary activity directly undertaken by a public agency which may cause a reasonably foreseeable indirect physical change in the environment." He agreed with CBIA's claim that the evidence in the record supports the argument that the Thresholds "might discourage infill development, encourage suburban development or change land use patterns. . ." The First Appellate District, Division Five, reversed Roesch's ruling, on two grounds. First, the court concluded that the CEQA Guidelines already lay out a process for public review of significance thresholds and a CEQA review – with an initial study and possibly an environmental impact report – would be duplicative. And second, the court said that there was not enough evidence in the record to support CBIA's contention that the thresholds would not discourage infill development. On the first point, Justice Henry Needham, writing for a unanimous three-judge panel, cited Guidelines Section Section 15064.7(b), which lays out the process by which thresholds should be adopted. "The District drafted proposed revised thresholds of significance in 2009, utilizing the scientific and administrative expertise of its staff," Needham wrote. "It then conducted public hearings, outreach, and workshops for more than a year. The administrative record, which contains staff reports, scientific reports and protocols, analyses of the effect the proposed thresholds would have on various projects, letters from interested parties, responses by the District, transcripts of hearings, and records from various workshops, is in excess of 7000 pages. CBIA and other groups with similar concerns about the proposed thresholds and their effects participated in that process. The District took the comments of such groups into consideration before adopting the?2010 Thresholds." Requiring the air district to also conduct a CEQA analysis "would result in a duplication of effort, at taxpayer expense and to little if any purpose." Needham also concluded that the record did not prove that adoption of the significance thresholds would discourage infill development or encourage sprawl. "Teasing out the extent to which undefined future projects might be built or abandoned as a result of the Thresholds, and the extent to which land development projects might be relocated to a more suburban location, would require a prescience we cannot reasonably demand of the District. No public agency other than the District is committed to using the Thresholds, and the District does not act as the lead agency for the type of residential and commercial projects CBIA alleges will be displaced," Needham wrote.

Two weeks after it was left for dead, SB 731 – the bill to reform the California Environmental Quality Act – unanimously passed the Assembly Local Government Committee Wednesday. The bill was amended last week to ease parking requirements on infill development but it was unclear whether that would be enough to satisfy the Assembly.  However, Wednesday's 5-0 vote suggested that the bill is likely to become law this year despite business opposition. After it passed the Senate unanimously in May, SB 731 ran into problems when a business group – the CEQA Working Group – switched from support to opposition and Assembly Speaker John Perez said more analysis was needed.  On Wednesday, Senate leader Darrell Steinberg – who is carrying the bill – had tough words for the CEQA Working Group. He was quoted in the Los Angeles Times as saying: "You want to move a mile, we will move a mile. You want to move one hundred miles in ways that may not be good, that's not going to happen with this bill."  Capital Public Radio quoted him with even blunter words: ""If there is any expectation – and I know there is a big expectation – that my bill will include the lengthy and ever-changing list that the CEQA coalition seems to want, you're gonna have to find another author, another year, another time, another way to do this."

At a glance, last week's California Supreme Court ruling in the Expo Line CEQA case laid down a pretty clear rule: Lead agencies can use a "future baseline" for environmental analysis, but they have to be very careful in documenting the reasons why. L.A. Metro erred in using a "future baseline," but fortunately for the agency the court concluded that it didn't make any difference to the analysis. A deeper look at Neighbors for Smart Rail v. Exposition Metro Rail Construction Authority , however, reveals a deeply split court that apparently almost went the other way – and that could have significant implications in the future for the way the California Environmental Quality Act unfolds in future court cases.  The court split 3-3-1 in the case. Justice Goodwin Liu provided the deciding vote on the future baseline question – but he didn't agree with the plurality decision on the question of whether using the future baseline made any difference in the outcome. And a close read of the two main opinions – the plurality opinion written by Justice Patricia Werdegar and the main dissent written by Justice Marvin Baxter, both of which got three votes – suggests that Baxter's was originally written as the majority opinion and Werdegar's as the dissent. Baxter's dissent begins with a broad and sweeping description of CEQA – typical of a majority opinion – while Werdegar's plurality contains many refutations of Baxter's points, as a dissent typically does. Had Baxter's reasoning carried the day, lead agencies would have virtually unlimited discretion in deciding what kind of baseline analysis to use. Why is this important? Because we've entered a new period of CEQA court rulings focused on narrow, technical decisions that have enormous consequences on the size and scope of the analysis.  For the first 20 years after CEQA was passed – from 1972 until 1990 – the courts consistently expanded CEQA's scope so that more and more issues had to be analyzed in great technical detail, thus creating ever-expanding environmental analyses. For the next 20 years – after the California Supreme Court's New Year's Eve 1990 ruling in Citizens Of Goleta Valley, v. Board Of Supervisors, 52 Cal.3d 553, 801 P.2d 1161, 276 Cal.Rptr. 410, the courts were much less aggressive in expanding CEQA's scope – largely because Goleta Valley contained a pretty clear warning.  Now, however, we appear to have entered the CEQA's "third wave". The courts are not vastly expanding CEQA's reach, and plaintiffs know better than to push in that direction. Instead, plaintiffs are relying on narrow technical arguments to make their case – mostly about what the ground rules for the analysis are. But while the arguments are narrow and technical, the impact of the rulings is not. For example, in Ballona Wetlands Land Trust v. City of Los Angeles (2011) 201 Cal. App. 4th 455, the Second District Court of Appeal ruled that a project's impacts do not have to be measured against future changing environmental conditions (for example, sea level rise). Similarly, in last week's Neighbors for Smart Rail v. Exposition Metro Line Construction Authority, the issue was whether or not L.A. Metro erred in the way it created the baseline of analysis for traffic and air quality impacts. For those two issues – but not for others – Metro use a "future baseline" of 2030 without the Expo Line Phase 2 in place, rather than a current baseline.  In a lot of ways, this makes sense. After all, we're not talking about a development project here. We're talking about a transportation project. So, whereas you might be able to analyze a development project against current conditions – assuming that the only change is whether or not the new subdivision is built – the whole point of a transportation project is to change future conditions from what they otherwise would be.  This was persuasive to Justice Baxter and the two judges who agreed with him. TO quote Baxter at some length:  "As a major infrastructure project designed specifically to address projected long-term increases in traffic congestion and air pollution, Expo Phase 2's very operation will, over time, achieve environmental objectives and efficiencies in complete alignment with CEQA's goals of enhancing and protecting the environment in this state. The majority does not disagree that the traffic and air quality conditions in 2007 will no longer exist when Expo Phase 2 is fully operational. But despite Expo Authority's reliance on this reality as a justification for omitting an impacts analysis based on the 2007 conditions, the majority proceeds to fault the agency for failing to analyze the conditions projected to exist eight years after that date, when Expo Phase 2 is scheduled to begin operations in 2015.  "The unfairness of today's decision is stunning: the majority finds an abuse of discretion based on the lead agency's failure to use a baseline that is nowhere mentioned in the CEQA statutes, regulations, or case law, and that no agency or member of the public ever advocated in the administrative review process below." But it wasn't persuasive to the majority. Quoting Werdegar's opinion – which got four votes: "Projected future conditions may be used as the sole baseline for impacts analysis if their use in place of measured existing conditions—a departure from the norm stated in Guidelines section 15125(a)—is justified by unusual aspects of the project or the surrounding conditions.  "That the future conditions analysis would be informative is insufficient, but an agency does have discretion to completely omit an analysis of impacts on existing conditions when inclusion of such an analysis would detract from an EIR's effectiveness as an informational document, either because an analysis based on existing conditions would be uninformative or because it would be misleading to decision makers and the public." This last bit of reasoning – that existing conditions can only be omitted if uninformative or misleading – appeared to be especially infuriating to Baxter. "It is unclear," he wrote, "how an agency might show that an existing conditions analysis would be "uninformative" or "misleading," without actually conducting such an analysis." Baxter concludes that the majority's decision will increase the complexity of CEQA analysis significantly and will lead to further conclusion and delay for both public and private projects in California. He may well be right. One can't help but notice that Baxter's reasoning is pretty clean and simple, while Werdegar's – while not tortured – is nevertheless complicated. As Baxter says, it's hard to know exactly how to follow the bouncing ball.  When CEQA's critics complain that the law is unnecessarily complicated, this is the kind of thing they're talking about. At its core, the question in the Expo Line CEQA analysis is simple: Will the construction of a major light-rail line benefit the environment or harm it? The Neighbors for Smart Rail ruling deals with the question of "compared to what" – and provides, , unfortunately, a rule that gives CEQA critics even more ammunition when they say the law is unnecessarily complicated.

Reports of CEQA reform appear to be greatly exaggerated. After sailing through the Senate late last spring, SB 731 – Senate leader Darrell Steinberg's supposedly consensus-based reform of the California Environmental Quality Act – is still in the Assembly.  Business-oriented CEQA reformers have reversed their earlier position and come out against it, while labor and environmental groups may also have problems with the bill.  Steinberg took some amendments to the bill on Tuesday – in particular, making it easier to deal with parking issues in infill locations -- but it remains to be seen whether that'll be enough to get the bill out of the Assembly. Back in May , Steinberg appeared to have a CEQA reform bill in the bag. After Michael Rubio, chair of the Senate Environmental Quality Committee, resigned to work for Chevron, aggressive CEQA reform proposals were dropped and Steinberg came up with a more modest bill that had the support of both CEQA defenders and CEQA reformers. That bill – which, among other things, linked CEQA reform to the implementation of SB 375 – passed the Senate on a unanimous vote in May and seemed headed for Gov. Jerry Brown's desk. But, surprisingly, the bill got hung up in the Assembly. At the end of July, Assembly Speaker John Perez told the Los Angeles Times , "There's not been the real discussion necessary for such a huge issue." at the end of the session. Perez's comments came a week after a surprising letter to Steinberg from the CEQA Working Group, a business-oriented coalition of CEQA reformers that had previously supported SB 731. "Unfortunately, as drafted, SB 731 would not advance true CEQA reform and, in fact, could make approval of worthy and responsible projects even more difficult," the letter said. Specifically, the letter called out the following points: * CEQA reform should "reduce duplicative environmental reviews and reduce meritless lawsuits" against projects that advance the goals of SB 375 and renewable energy projects. The letter was not specific about how this should occur. * SB 731 should be amended to "require disclosure of any party that has financially contributed to CEQA litigation, similar to campaign finance disclosure laws and court mandates for third parties seeking to file advocacy briefs in lawsuits. * CEQA plaintiffs should have "skin in the game" and "be required to pay for the lead agency's preparation of the record required for CEQA litigation." It is not clear precisely why the CEQA Working Group changed course or what the hangup in the Assembly is. In an insightful blog last week , caeconomy.org's Justin Ewers suggested that all sides are now engaged in pushback against the bill but labor in particular has objected to the CEQA streamlining for infill development contained in the bill. Labor sometimes uses CEQA to stall anti-union projects such as Wal-Mart stores, and often sides with environmental justice advocates who see CEQA as a tool to protect low-income communities. At the heart of the Steinberg bill is a proposal to streamline review of certain issues in transit-rich locations, both by establishing statewide significance thresholds and declaring that certain issues cannot be considered significant impacts. The main change in Tuesday amendments was to move parking from the thresholds category to the no significant impact category. Previously, the bill called on the state to create infill thresholds for noise, transportation and parking, while declaring that no significant impact could be found on asthetics. The new version moves parking from the thresholds to the no significant impact category. It's not clear whether that change will satisfy the critics, however, since the larger issues appear to deal with the standing and timing of lawsuits. None of the CEQA Working Group's recommendations were included in the revised bill and labor would be unlikely to agree to them in any event.

San Francisco's Transbay Transit Center is slowing taking shape in a hole south of Market Street. Three years of subterranean excavation are supposed to lead to steel beams for a five-story building that will begin to rise in 2014.  When  completed in 2017, the four-block-long transit center is expected to become a civic and regional landmark, with a large rooftop park, surrounded by numerous skyscrapers and a pedestrian-dense office, retail and residential community. Project boosters are referring to it as the Grand Central Station of the West. San Francisco officials are hoping the transit center helps redevelop the surrounding area into the densest neighborhood west of the Mississippi.  It's a far cry from what was once a light industrial neighborhood in the shadow of the city's downtown, located only a few blocks way. But the area has benefited from city policies that encourage development to migrate south from the city's financial district, as well as development sparked by the removal of the nearby Embarcadero Freeway after the 1989 Loma Prieta Earthquake. The new transit center will rise on the same spot as the city's Transbay Terminal, which served commuters from 1939 until 2010. The old Transbay Terminal was a rundown, forlorn structure on Mission Street, where streetcars once ended their routes across the Bay Bridge.  Starting in the 1950s, the terminal was strictly used by  buses, which arrived from throughout the entire Bay Area on special freeway offramps. But under the guidance of a Joint Powers Authority, composed of San Francisco officials and the Bay Area transit districts that used the old facility, a new terminal, with a new name--the Transbay Transit Center--is now being built at a cost of $4 billion.  The new center is supposed to bring together 11 transportation systems, and serve 45 million people a year. Some of the transportation systems don't yet service San Francisco, and funding for many of the projects isn't yet secured.  But project planners are thinking big. To encourage the transit-oriented development, the city has created a plan for 40 acres around the transit center, which includes generous upzoning of commercial properties, planned retail corridors, and pedestrian friendly amenities such as wide sidewalks and alleyways lined with townhomes.  Much of the new development is planned for land freed up by tearing down parts of the Embarcadero Freeway and one freeway off-ramp that once served the transbay terminal, according to Courtney Pash, assistant project manager for the Transbay Redevelopment Project Area, which is a successor agency to San Francisco's Redevelopment Agency. The revitalized area around the Transit Center is expected to have 4,600 housing units, with 25% of them affordable units. Many of the residences will be at the southern end of the redevelopment area along Folsom Street, complementing new residential construction in nearby Rincon Hill. Six million new square feet of new commercial and office space will be created, much of it in high rises. The skyscrapers are will be slender, to minimize shadows. The signature high-rise will be on Mission Street property that once was the front entrance of the Transbay Terminal.  Construction is expected to begin soon on a 1,070-foot-high, 60-story glass tower, designed by the firm of Pelli Clarke Pelli. The building, known as the  TransbayTransit Tower, will dwarf the city's Transamerica Pyramid by more than 200 feet when it is completed in 2017. Across the street from the Transbay Transit Tower, two additional towers are supposed to rise, with 1.2 million square feet and 605 condominiums, in a project spearheaded by TMG Partners. The two towers will be almost as tall as its neighboring tower, with a 59- story office tower and 56-story condo tower. Stephanie Reichin, a spokesman for the Joint Powers Authority, said there are  five other new high-rises planned in the area. The center's construction during the recession may have jump-started development in the area, which had seen many high rises built during before 2008. "A lot of development was planned prior to the recession and then stopped when it hit,"Reichin said. "When we started construction of the transit center in 2010, it was a sign of economic recovery and a catalyst for many developers in the area." It also helped that zoning increased to allow bigger, taller buildings. "For some of the parcels in the plan area, the allowable height was increased," Pash said ."The goal is to increase the density." "The goal for the area has always been to extend downtown south of Market," she  said. A successful redevelopment is evident a few blocks from the transit center, at Yerba Buena Gardens, where a park, a convention center and several museums and hotels all expanded the downtown core. Fears that the increased construction near the transit center might not withstand earthquakes have been addressed, Pash said. "All buildings have to meet the city's strict earthquake standards," she said. "The terminal and Transbay Tower exceed the city's standards." The office vacancy rate in San Francisco is currently at 8.7 percent, as San Francisco reaps the benefits of being at the northern arc of Silicon Valley.  The new transit center may also make commuting easier for the thousands of San Franciscans who now commute south to San Mateo and Santa Clara County, where many high tech companies are located. Pash said the transit center and surrounding area will feature 9.5 acres of parks, including a signature 5.4 acre park located on top of the transit center itself. The park will include a 1,000 person amphitheatre. Plans for the new transit center envision tying together 11 different transportation systems, although not all have yet been funded   One examples is California's high speed rail, with bullet trains beginning their journeys to Los Angeles there. But funding fights over that project, and opposition to its operation on the San Francisco Peninsula, have raised questions about whether it will ever be built. In addition, Amtrak is supposed to end its lines at the transit center, if Amtrak decides to deliver rail passengers to San Francisco. Caltrain, the peninsula's three-county rail service, is also supposed to terminate there, if money is ever found to extend the rail system from its current San Francisco terminus about a mile away. Plans also call for a people mover sidewalk to speed passengers from the center to a BART station in downtown's Embarcadero Center. Rendering of new Transbay Transit Center and office tower

The City of San Jose has won an important round in a potentially landmark chase challenging the legality of inclusionary housing ordinances in California. The California Building Industry Association has challenged San Jose's inclusionary housing ordinance, claiming that in adopting it the City did not make a necessary "nexus" finding. In essence, CBIA is arguing that an inclusionary housing requirement is an exaction and therefore cannot be imposed unless a reasonable relationship is proven between the development being approved (market-rate housing) and the impact being mitigated (the need for affordable housing). Santa Clara County Superior Court Judge Socrates Monoukian ruled in favor of CBIA. On appeal, however, the Sixth District Court of Appeal ruled that the inclusionary housing ordinance is an exercise of the police power, not an exaction, and therefore the burden of proof lies with CBIA, not with the City. The Sixth District remained the case to the trial court. It's a blow for the homebuilders, who have been trolling for a winning argument against inclusionary argument. Having lost Home Builders Ass'n of Northern California v. City of Napa (2001) 90 Cal.App.4th 188, 194 – in which the homebuilders claimed that inclusionary housing amounted to an unconstitutional taking – the builders now claim that inclusionary housing is an exaction. Inclusionary housing ordinances – requiring housing developers to set aside a certain percentage of their units as affordable or else pay a fee in lieu of that set-aside -- have become more common in California in recent years. According to one study in 2006, at least 30,000 affordable housing units have been constructed as a result of inclusionary requirements. However, the building industry has consistently argued against inclusionary ordinances, saying that they increase the cost of all housing and therefore actually make housing less affordable. In a 2009 letter to CBIA, Lynn Jacobs – then the state housing director and a former president of the Los Angeles BIA – stated that local governments should analyze inclusionary housing ordinances as a potential constraint to affordable housing when preparing their housing elements. San Jose adopted an inclusionary housing ordinance in 2010, which required residential developments of 20 or more units to set aside 15 percent for purchase at a below-market rate to households earning no more than 110 percent of the area median income. Developers had the option of providing the units off-site or paying a fee in lieu of providing the units. Relying on standards laid down in San Remo Hotel L.P. v. City & County of San Francisco (2002) 27 Cal.4th 643, and Building Industry Association of Central California v. City of Patterson <(2009)> 171 Cal.App.4th 886, CBIA filed a facial challenge to the ordinance, claiming that the City had failed to show a reasonable relationship between residential development projects and the inclusionary requirement, which it characterized as an exaction.  CBIA argued that the city's action lacked any "attempt to identify, much less to quantify, any 'deleterious public impacts' on City needs for affordable housing caused by new market rate development" and that the inclusionary percentages contained in the ordinance were arbitrary. Apparently seeking to distinguish this case from the Napa case, CBIA also went out of its way to make the point that it was not making a takings claim, which probably would have required an action for relief from a developer who had actually been subjected to the ordinances, rather than a facial challenge from a trade association such as CBIA. Judge Manoukian bought CBIA's argument, concluding that "the challenged portion of the ordinance bears no reasonable relationship to permissible outcomes in the generality or great majority of cases." The City and several affordable housing groups appealed the case to the Sixth District. They argued that the inclusionary housing ordinance should be considered a land use regulation enacted through as an exercise of the City's police power, not an exaction. For this reason, they claimed, the Court should have applied a difference standard of review -- giving great deference to the City – that required the Court to uphold the ordinance if it "merely has a reasonable relation to the public welfare" and also placed the burden of proof with CBIA, not the City. The appellate court sided with the City, reversed Manoukian's decision on the standard of review, and sent the case back to the trial court. CBIA argued that the inclusionary ordinance is an exaction because residential developers must "dedicate or convey property (new homes) for public purposes," or alternatively, pay a fee in lieu of "such compelled transfers of property."  However, the appellate court did not buy CBIA's argument. "This alternative portrayal of the inclusionary housing requirement misses the mark," the court wrote. "The IHO does not prescribe a dedication." The Court knocked down CBIA's arguments drawn from a whole series of exactions cases – most especially San Remo, which required hotel owners to provide affordable housing units as compensation for lost affordable housing when single-room occupancy hotels in San Francisco were converted to tourist use.  "We thus conclude that the standard articulated in San Remo is inapplicable here, and that the Ordinance should be reviewed as an exercise of the City's police power," the Court ruled. The Court did caution that "this does not entail unthinking acquiescence to the City's stated goals." But it did review case law on exercise of police power at some length and reiterated that the burden of proof lies with CBIA, not with the City.

The U.S. Supreme Court has tightened the screws on exactions, ruling in a case from Florida that government agencies must follow the Nollan/Dolan doctrine – even when a permit is denied and when the exaction involves money as well as property. At a glance, the ruling would appear to strike down the California Supreme Court's 17-year-old ruling in Ehrlich v. Culver City , 12 Cal.4th 854, which gave cities and counties more leeway on exactions when they are imposed as part of a general plan policy rather than a one-off permit.  The Nollan/Dolan doctrine demands that exactions imposed on developers be closely connected to the development's impacts. In Nollan v. California Coastal Commission , 483 U.S. 825 (1987), the Supreme Court ruled that there must be a "rational nexus" between a development and an exaction. In Dolan v. City of Tigard , 512 U.S. 374 (1994), the Supreme Court ruled that there must be "rough proportionality" between the cost of the impact created and the cost of the exaction demanded.  In Koontz v. St. Johns Water Management District , the court ruled 5-4 – along predictable ideological grounds – that these two rules apply in a situation where a property owner declined to accept the exactions and therefore the permit was denied. The court also ruled that there is no difference between an exaction of property and an exaction of money. Writing for the five-justice majority, Justice Samuel Alito resolved the most basic question in the case by saying that an actual taking did not have to occur in order for the property owner to have his constitutional rights violated. "Extortionate demands for property in the land-use permitting context run afoul of the Takings clause not because they take property but because they impermissibly burden the right not to have property taken without just compensation." He added: " he impermissible denaiol of a government benefit is a constitutionally cognizable injury." Writing for the four-judge minority, Justice Elena Kagan predicted that the ruling's effects would be widespread and confusing because ordinary fee setting will now be subject to federal constitutional tests. "The Federal Constitution … will decide whether one town is overcharging for sewage, or another is setting the price to sell liquor too high."  The facts of the case will be pretty familiar to anybody who follows California land-use regulation and wetlands regulation in particular. Property owner Cory Koontz bought a piece of land along the East-West Expressway east of Orlando in 1972, then lost part of it via eminent domain for an extension of the highway in 1987. Koontz was left with 14.2 acres of land, of which 12.8 acres is located in the Riparian Habitat Protection Zone (RHPZ) of the Econlockhatchee River Hydrological Basin and therefore subject to regulation by the water district. In 1994, Coontz sought approval to develop 3.7 acres of the property, of which 3.4 acres were wetlands and 0.3 acres were uplands. This was the portion of the property closest to highway. The water district agreed to permit this development so long as Koontz dedicated the remaining 10.5 acres to a conservation area and engaged in a variety of offsite mitigation efforts, including replacing culverts and plugging drainage canals several miles away. As an alternative. the water district said he could reduce his project to one acre and dedicate the rest to the conservation district. Koontz rejected the offsite mitigation and the alternative and the water district denied his permits. Writing for the court, Alito stopped short of deciding whether the property owner was entitled to monetary damages and remanded the case to Florida courts for further discussion. As stated above, by subjecting all exactions to the Nollan/Dola n test, Koontz would appear to overrule the longstanding Ehrlich rule in California, which permits more flexibility on exactions if they are imposed as part of an overall policy such as a general plan. Koontz would appear to eliminate any such flexibility. The Koontz ruling put to rest the idea that a conservative justice – possibly Antonin Scalia – would cross over to the liberal camp on the argument that the Takings clause cannot be applied in a case where a permit was not issued and therefore nothing was actually taken. He appeared to be leaning in that direction during oral argument. In the end, however, he sided with his conservative brethren. Koontz is notably for its unusually cross-referential banter between Alito and Kagan. Each refers to the other's opinion repeatedly and refutes it at length. As is his custom , Alito cloaked his ruling in arcane cases from long ago, a palpable anti-government streak (he used the word "confiscate" four times), and an unwillingness to play out the consequences of the ruling. Indeed, he spends a significant amount of time in his ruling explaining why the court does not need to go further than simply rule whether the Nollan/Dolan doctrine applies. He bases his opinion in large part on the doctrine of "unconstitutional conditions" – a doctrine rarely relied on, at least overtly, in land use cases – and his view that exactions are similar to liens, a notion that has rarely been put forth previously in a land use case. By contrast, Kagan's dissent is written in a straightforward fashion that is much more accessible to the lay reader and deals more extensively with the likely consequences of the ruling. Indeed, throughout both opinions, it is sometimes not clear whether or not the two justices are even talking about the same case. Kagan's interpretation of the interplay between the water district and Koontz is far different from Alito's, and this interpretation plays a big role in her conclusions. Alito accepted Koontz's version of the facts, saying that the water district gave Koontz two alternative mitigation proposals, both excessive. Kagan's dissent oozed skepticism about this black-and-white view of what happened, saying instead that the water district had simply proposed two mitigation options as possibilities and invited Koontz to negotiate further. " he District never made a demand or set a condition – not to cede an identifiable property interest, not to undertake a particular mitigation project, not even to write a check to the government. Instead, the District suggested to Koontz several non-exclusive ways to make his applications conform to state law." This interpretation led her to argue that if even casual negotiations between government agencies and developers are subject to the Nollan/Dolan rule, then government agencies will simply stop negotiating with developers and turn permits down – not a good outcome for developers.

Voters in the North San Diego County city of Encinitas have narrowly approved  a ballot initiative limiting building heights to two stories in most parts of the city and requiring future changes in height and density to a vote. Proposition A emerged in part from the city's raucus debate over a General Plan Update, which highlighted the question of whether taller buildings and greater density. The measure passed with 51% of the vote Tuesday The City of Encinitas is a collection of older communities near Carlsbad that were combined when the city was incorporated in the 1980s. These communities include downtown Encinitas and the beach town of Leucadia. Downtown Encinitas has seen several three-story buildings constructed in recent years, including one designed around a Whole Foods supermarket. North County has always been a hotbed of ballot-box zoning, though the pattern has slowed down considerable in recent years Much of the debate over Proposition A revolved around the state's density bonus law, which permits developers to increase density in exchange for providing affordable housing. Several councilmembers who were originally in favor of Proposition A later changed their position, arguing that the density bonus law would permit developers to end-run the two-story height limit but do so with less city control. In an effort to blunt support for Proposition A, the City Council voted to eliminate an existing exemption to local voter-approval provisions. Previously existing Encinitas ordinances already required voter approval for large projects, but permitted the council to waive that requirement with a four-fifths vote. The council eliminated that exemption in May as the election heated up.