Politicians Consider changes to Calif's Main Environmental Law

CEQA Roundup - The Good, Bad & Potentially Bad: What business thinks of reform bills

6/7/2013, swiped from:
http://www.caeconomy.org/reporting/entry/ceqa-roundup-the-good-bad-potentially-bad-what-business-thinks-of-reform-bi 


Bills addressing legal uncertainty around the Ballona Wetlands decision received some resistance. (Photo Credit: stonebird/Flickr)

The CEQA reform debate was put largely aside this week as lawmakers work to finalize the state budget before next week's deadline. The short breather provided an opportunity for a post-mortem on the legislative process so far—with one analysis by a group of land use attorneys offering an early glimpse of where business interests, in particular, are likely to seek changes in the months ahead. (More on that below.)
What CEQA proposals are still moving
Of the more than two dozen CEQA bills introduced this winter, only five made it out of their house of origin last week, meaning they could still become law this year.
Perhaps the biggest surprises were the stumbles of the most comprehensive CEQA changes backed by environmentalists, Asm. Ammiano's AB 953 and Sen. Evans's SB 617. Both bills contained the same proposal to address lingering legal uncertainty surrounding the recent Ballona decision, a legal change that is popular with some Dems—but particularly unpopular with the state Chamber of Commerce, which tagged both bills as "job killers." It will be worth watching to see if the bill's legal language makes its way into one of the five CEQA bills still moving.
The Land Use & Development Law Report offers a helpful roundup of the CEQA changes that are still on the table. Their summary:
Active CEQA bills:

• SB 731, the "CEQA Modernization Act of 2013.″ (See CAeconomy's summary of what the bill does—and doesn't do.)
• AB 37, which would require lead agencies to prepare their records of proceedings at the same time they prepare environmental documents for certain projects
• AB 543, which would require translation of certain CEQA notices and CEQA document summaries if 25% of nearby residents are non-English-speaking
• AB 436 and AB 380, which would impose additional CEQA notice and filing requirements

CEQA bills that did not make the cut:

• SB 787, the same far-reaching and controversial CEQA reform proposal that first surfaced in August 2012
• Proposals for specialized divisions within superior courts to handle CEQA case
• Efforts to overturn recent appellate court decisions [including Ballona] holding that CEQA concerns the effects of projects on the environment—not effects of the environment on projects
• Three bills, or portions of those bills, that would have extended the 2011 Environmental Leadership Act's CEQA streamlining provisions to additional categories of projects

Where business may push back
Sen. Steinberg's SB 731, with its focus in streamlining the CEQA process for infill developments, remains the most comprehensive piece of reform legislation. As we pointed out last week, in spite of the unanimous support for the bill in the Senate, disagreements still exist over many of the bill's details.
While environmentalists haven't detailed their quibbles in the last few weeks, a group of land-use attorneys at the law firm Manatt, Phelps, & Phillips recently posted a critical analysis of the bill's provisions—offering a window into where business interests may seek changes in the months ahead.
The Manatt analysis divides the bill's proposals into four categories: Good, Bad, Potentially Bad, and Status Quo. The attorneys consider only one of the bill's provisions "good:" Steinberg's removal of "aesthetic" impacts from the CEQA process. As Manatt puts it, this "removes a subjective matter from environmental review, resulting in possible time/cost savings for qualifying projects.
Many of the other changes the bill would make—including Steinberg's proposals to set new thresholds for common urban environmental impacts like noise, traffic, and parking—are viewed by Manatt with a fair bit of skepticism.
These proposals seem likely to be the focus of debate—and amendments to tighten up language—now that the bill has moved to the Assembly:

• Setting new "thresholds" for common urban environmental impacts – Manatt's take: "Potentially Bad: Noise, traffic and parking are quintessential local issues. Statewide standards may result in local battles over the need for more specific local thresholds of significance, and the nature/scope of local thresholds."


• New requirements that draft CEQA findings be made public sooner – Manatt's take: "Bad: Additional noticing will result in increased processing costs for project proponents and could result in significant delay if revisions to findings and additional public review are necessary."


• Allowing administrative record to be prepared concurrently with the project (instead of at the end): Manatt's take: "Potentially Bad: Currently written such that only the applicant may make this request. May encourage CEQA litigation since administrative record will already be prepared (and paid for) at time of project approval."


• New annual report requirements to demonstrate mitigation of environmental impacts: Manatt's take: "Potentially Bad: Heightened local agency oversight of project implementation and ongoing CEQA compliance. Additional opportunities for CEQA lawsuits where report identifies deficiencies with implementation of mitigation measures. Additional annual costs to project proponents until satisfaction of all MMRP conditions."


• Prohibiting project opponents from performing last-minute "document dumps" to slow down CEQA review process: Manatt's take: "Status quo: While the legislation states that it intends to make changes to Section 21091, no changes to Section 21091 are actually proposed in SB 731 as currently drafted."

Wanna sign your environment away?

Tired of clean air, open space protection, and access to the beach? Sign this petition to let the "free" market rule!

This guy from the coast-side of the San Francisco bay, Oscar Braun, has been on an all-out war against the state's Coastal Commission for quite a while now. His newest effort is to outlaw all of the state's environmental protection laws at once.
Braun has been furious at the state and the County of San Mateo for thwarting his development plans on a 70 acre ranch which he bought in 1988 for $300,000 and later sought, unsuccessfully, to sell for $25 million.



http://www.freerepublic.com/focus/f-news/2138541/posts


-------------------------

Here's the press release from the state's Secretary of State's office, which regulates voter-initiated law petition drives.

http://www.sos.ca.gov/admin/press-releases/2011/db11-054.pdf

"11/22/2011--ELIMINATION OF ENVIRONMENTAL PROTECTION LAWS AND AGENCIES. INITIATIVE CONSTITUTIONAL AMENDMENT AND STATUTE. Repeals the California Environmental Quality Act, California Coastal Act, California Endangered Species Act, California Global Warming Solutions Act, and California Sustainable Communities and Climate Protection Act. Abolishes the California Environmental Protection Agency and Air Resources Board. Establishes new inalienable rights to produce, distribute, use, and consume air, carbon dioxide, water, food, habitat for humanity, universal heal thyself care, and energy generating natural resources. Grants Californians the individual right to nullify all federal powers not specifically delegated to the United States by the federal constitution.

The Secretary of State's tracking number for this measure is 1521 and the Attorney General's tracking number is 11-0043.

The proponent for this measure, Oscar Alejandro Braun, must collect signatures of 807,615 registered voters - the number equal to eight percent of the total votes cast for governor in the 2010 gubernatorial election - in order to qualify it for the ballot. The proponent has 150 days to circulate petitions for this measure, meaning the signatures must be collected by April 19, 2012.

No public contact information was provided by the proponent.

To sign up for regular ballot measure updates via email, RSS feed, or Twitter, go to www.sos.ca.gov/multimedia."

terminate California's environment?

-
Schwarzennegger seeks Enviro exemptions for 100 major construction projects

---100 developers would get to build what they want and not have to pay to fix any of the problems they cause.

1/14/2010

excerpted from
http://www.capitolweekly.net/article.php?xid=yk12wh3nzgx6v4

The Schwarzenegger administration seeks to exempt some 100 major construction projects across the state – including private developments – from California environmental laws. The plan, denounced by environmentalists, would block the power of the courts to review 25 projects each year from 2011 through 2014, and give final authority over the projects to his administration.

The projects have not been identified publicly, but potentially they could be worth hundreds of millions of dollars – or more.... An earlier version of the proposal drafted on Dec. 29 listed 20 construction projects across the state, arranged according to their location within the state’s patchwork of air quality management districts. The latest version increased the number of projects to 25 annually through 2014, distributed according to county clusters.

Under the proposal, 10 projects would be located within Imperial, Los Angeles, Orange, Riverside, San Bernardino and San Diego counties. Five others would be located in Alameda, Contra Costa, Marin, Napa, San Francisco, San Mateo, Santa Clara, Solano and Sonoma counties. Five more would be in Fresno, Kern, Kings, Madera, Merced, Sacramento, San Joaquin, Stanislaus and Tulare counties. The remaining five counties would be drawn from across the state....

The construction unions favor the jobs, but questioned whether loosening CEQA was the way to get them.

-------------------

The U.S. Senate's Budget Committee is not too keen on the idea either:

from PCL Insider, 1/22/2010

POORLY PLANNED DEVELOPMENT

The committee then critiqued the Governor's proposal to allow over 100 major new developments to bypass measures to ensure smart planning and meaningful public participation. The Department of Finance was pressed to explain how the Administration could expect developers to mitigate the impacts of their projects or include local input in the absence of any mechanisms for accountability. PCL was on hand along with several other groups to explain that the proposal would be a de facto exemption from the California Environmental Quality Act, and could lead to new toxic power plants or waste incinerators near schools and neighborhoods. Local residents would have no way to insist that a project's pollution and other impacts be mitigated to minimize harm. Again, several committee members questioned how the proposal would create jobs or improve the current budget crisis.

Read this book on eco-laws!!!

-
A Must-Read guide for fighting development

http://www.ruralcanyons.org/stb2/pmwiki.php/Main/HomePage

This book is written for people who care about their community, their city, their country, their planet, but who have found through bitter experience that their local elected officials (city council members and county supervisors), along with most staff members, are in the pockets of developers; they couldn’t care less about their community, their city, their country, or their planet.

The author is not a lawyer, but has successfully sued cities and counties, stopping or modifying several developments local government had approved. The purpose of this book is to share his experiences in doing this with others so inclined, but not to give legal advice. It will show you how to influence governmental decisions about development most effectively, while simultaneously preparing for a lawsuit, should you later decide to file one. This book can also help you decide whether to file a lawsuit, considering the costs, the risks, and the possible benefits...

-

Court Battle is soon over Santa Barbara Coastal Oil Drilling

Paredon Goes to Court on April 21

http://edcnet.org/

from EDC 4/6/2009--For the past three years, the Environmental Defense Center, Carpinteria Valley Association, Citizens for the Carpinteria Bluffs, Get Oil Out! and the Sierra Club Los Padres Chapter, along with hundreds of Carpinteria residents, have participated in the City of Carpinteria's review of the proposed Venoco oil drilling project known as "Paredon."

On February 2, 2009, Venoco, Inc. notified the City of Carpinteria that the company intended to circulate an initiative petition regarding the proposed Paredon oil drilling project. Although it pretends otherwise, Venoco's initiative would completely circumvent the City's normal public planning and environmental review processes, and would deny the community access to critical information. It would discourage informed public dialogue and community engagement, vital and necessary components of any planning process. In addition, the oil company has drafted an initiative that violates the California Constitution and a host of other state laws. The City is charged with upholding the law and preserving the public welfare, and Carpinteria officials acted responsibly when they requested a judicial ruling on the legality and appropriateness of Venoco's oil drilling initiative.

The Carpinteria City Attorney's complaint lists six causes of action against Venoco, including charges that the initiative contains provisions that are unconstitutional and illegal under state law. For example, voter initiatives may only propose legislative, or law-making, acts; administrative acts, such as issuing development permits, may not be proposed by voter initiative. The complaint further describes how the initiative is inconsistent with Carpinteria's General Plan, how the initiative is "unconstitutionally vague, misleading and contains false statements," how it conflicts with the California Environmental Quality Act (CEQA), and how it would "impair essential government functions" of the City of Carpinteria.

None of the City's claims impedes or disparages public involvement or community decision-making; the City is actually working to protect these citizen's rights. The City's case will is currently scheduled to be heard in Superior Court on April 21 (date may be subject to change: stay tuned).

EDC and our clients support the City of Carpinteria in its efforts to preserve the public planning process.

-
U.S. Supreme Court Rejects Right to File Lawsuit Based on Affidavit of Frequent National Forest Visitor Over Now-Cancelled Logging Plan

By Debra Cassens Weiss, ABA Journal, http://www.abajournal.com

3/3/2009

The U.S. Supreme Court has ruled that environmental groups don't have standing to challenge Forest Service comment regulations for small projects based on an affidavit of a member who frequently visits the National Forests. The 5-4 decision (PDF) will make it more difficult to challenge federal regulations governing timber sales and other forest policies, the Associated Press reports. The case before the Supreme Court concerned a regulation exempting smaller fire-rehabilitation planning projects from public input requirements. The Sierra Club and four other environmental groups had challenged both the public comment exemption and Forest Service plans to salvage timber from a fire in the Sequoia National Forest, but settled the latter suit. As a result of the settlement, the plaintiffs did not suffer a concrete injury giving them standing to pursue the comments case, the Supreme Court ruled. Justice Antonin Scalia wrote the majority opinion. "The requirement of injury in fact is a hard floor of Article III jurisdiction that cannot be removed by statute," he wrote. Scalia said the environmental groups had submitted two affidavits before the settlement was reached by members who claimed to be affected by the Forest Service decisions. The first affidavit, he said, was related to the settled case and could not be used to challenge the comment regulations. The second affidavit was filed by an environmentalist, Jim Bensman, who said he had visited many National Forests and planned to visit many more in the future. Scalia wrote that the affidavit required too many assumptions. "Here we are asked to assume not only that Bensman will stumble across a project tract unlawfully subject to the regulations, but also that the tract is about to be developed by the Forest Service in a way that harms his recreational interests, and that he would have commented on the project but for the regulation," Scalia wrote. Scalia rejected a standing test offered by the dissenters that would rely on a realistic threat that the challenged activity would reoccur and cause harm to the plaintiffs in the reasonably near future. "The dissent proposes a hitherto unheard-of test for organizational standing: whether, accepting the organization's self-description of the activities of its members, there is a statistical probability that some of those members are threatened with concrete injury," he wrote. "This novel approach to the law of organizational standing would make a mockery of our prior cases."

The case is Summers v. Earth Island Institute.

http://www.supremecourtus.gov/opinions/08pdf/07-463.pdf

-------------

http://www.mcclatchydc.com/260/story/63194.html

"The Burnt Ridge project is now off the table," Justice Antonin Scalia noted from the bench Tuesday morning. "The parties settled, the timber sale is not going to happen and the (environmentalists) can no longer claim that they are at risk of injury from it."

The 15,000-member Earth Island Institute had joined others, including the much-smaller Sequoia ForestKeeper, with 100 or so members, to challenge Forest Service plans for logging on Burnt Ridge. The 238-acre region burned during a large forest fire in the summer of 2002.
--------

more background:

http://www.mcclatchydc.com/homepage/story/50002.html

http://www.sequoiaforestkeeper.org/pressreleases.html

http://www.martenlaw.com/news/?20090305-env-groups-rights-limited

-
Courtroom Battles that Affect all of California:

CA Supreme Court Denounces Conditional Approval of Projects before Conducting Environmental Review

By: Jan Chatten-Brown of Chatten-Brown and Carstens, http://www.cbcearthlaw.com

In a landmark ruling, Save Tara v. City of West Hollywood (2008) 45 Cal.4th 116, the Supreme Court unanimously affirmed a ruling by the Court of Appeal that the City of West Hollywood violated the CEQA when it approved a redevelopment project before completing the EIR for the project, and that making the approval conditional upon subsequent preparation of an EIR did not cure the defect. The case has profound implications for when public agencies must conduct CEQA review.

Save Tara, the Plaintiff, argued that by approving a residential development project, even though conditioned on subsequent environmental review, the City of West Hollywood effectively predetermined the outcome of the later environmental review. The Supreme Court agreed. The Court stressed that merely conditioning an approval on subsequent review would undermine the purposes of CEQA, which is both to protect the environment and to ensure government accountability. By committing its resources and prestige to the project, the City undermined the integrity of the subsequent review process. “Rather than a document of accountability…the EIR may appear, under these circumstances, a document of post hoc rationalization.” The Supreme Court also indicated that courts must closely scrutinize agency decisions on the timing of the environmental review process: “an agency has no discretion to define approval so as to make its commitment to a project precede the required preparation of an EIR.”

Jan Chatten-Brown, a PCL Regional Vice President and founder of the environmental law firm of Chatten-Brown & Carstens in Santa Monica, who successfully litigated the case, stated “Increasingly, public agencies have sought to move projects forward before conducting environmental review, thus shutting the public out of a key part of the decisionmaking process, and creating irresistible momentum for many projects. The Court’s decision rejects such pre-review commitment to projects and provides guidance for planning processes by public agencies large and small throughout the state. In reaching its decision, the Court reiterated that the review must be conducted before a commitment to the project is made.”

The Court did not establish a “bright line” rule against conditional agreements, but rather said courts must consider all of the circumstances when determining whether an agency had gone too far in its approval process before conducting CEQA review. However, as a practical matter, the manner in which the Court applied its principles to the facts of the Save Tara case should have the effect of discouraging agencies from using conditional agreements. Most importantly, as at least one Court of Appeal has now recognized, the Supreme Court in Save Tara limited the application of a number of earlier Court of Appeal decisions that had been relied upon by public agencies to allow approval of aspects of projects before environmental review was conducted.

The Supreme Court’s decision also rejected the City’s claim that its after-the-fact preparation of an EIR had rendered the case moot. The Court noted that the City had not taken any irreversible physical or legal decisions since the EIR was prepared, and that it must reconsider its decisions after it has the benefit of an environmental evaluation. Therefore, the Plaintiff could still obtain the relief it sought.

-------------------

Obama Announces Endangered Species Act Rescue

3/6/2009--Our country's best wildlife law will soon rise from the ashes of its Bush administration near-demise, according to a Tuesday memorandum issued by President Obama announcing he'll rescind Bush's rules eviscerating the Endangered Species Act. The undoing of the rules means that thousands of potentially species-harming federal activities exempted by Bush from independent review -- including activities generating greenhouse gases -- will again be the rightful subjects of scientific scrutiny by federal agencies. A full defeat of the rules may require more action by the new administration, but Tuesday's announcement is an essential first step. The Senate is now considering a bill that would let the Obama administration, with the stroke of a pen, rescind both Bush's Endangered Species Act changes and a special rule weakening protections for the polar bear.

When Bush's Endangered Species Act regulations were finalized in December, the Center for Biological Diversity was already in court to fight them. We're glad to see scientists back in the driver's seat for endangered-species management and hope Obama will fully rescind both the Endangered Species Act changes and the polar bear rule.

Read more in the Washington Post.

http://www.biologicaldiversity.org/news/center/articles/2009/washington-post-03-03-2009.html

-----------------------------
Other Sources of Environmental Law--some from the dark side...

takings by michael berger-Manatt, Phelps & Phillips, LLP
http://www.manatt.com/KnowledgeCenter.aspx?id=141

Bargaining for Development: A Handbook on how government cuts deals with developers:
http://books.google.com/books?id=OJDOzdkdJZAC&pg=PA94&lpg=PA94&dq=Santa+Margarita+Area+Residents+Together&source=web&ots=ox2hwEZ0uW&sig=sotFdHKwG-MPB8ygM5bXBHJURss&hl=en&sa=X&oi=book_result&resnum=9&ct=result#PPA97,M1

CEQA : Abbott & Kindermann Land Use Law Blog http://blog.aklandlaw.com/articles/ceqa/

A year in review of CEQA for 2008: http://blog.aklandlaw.com/2009/01/articles/ceqa/ceqa-the-2008-year-in-review/

----------------------------

http://www.landprotect.com/News_Feeds.html

Land trusts have a critical role to play in protecting lands in their natural state to diminish greenhouse gas emissions. CPC drafts each of its conservation easements to take global warming into account.

http://www.landprotect.com/files/25815458.pdf

Capturing the Value of Appreciated
Development Rights On Conservation
Easement Termination

-
Plastics Industry Lawsuit Halts Bag Ban--for now

To our Readers: plastic bags and other plastic trash are a huge problem for our oceans, beaches, creeks, storm drains and bulging landfills. The more we can mandate the elimination of plastic with renewable products, the better.

--the editor

2/21/2009, excerpted from:
http://www.dailybreeze.com/ci_11754190

A Superior Court judge Friday rejected Manhattan Beach's ban on plastic carryout bags, ruling that the city should have first fully studied its potential environmental consequences.

Judge David Yaffe decided that the city must consider that a proliferation of paper bags, a likely result of banning plastic carriers, could harm the environment.

Believing a full environmental analysis was unnecessary, the city conducted an initial study and found no significant threat to the environment from the ban.

Opponents, however, argued that eliminating the option of plastic bags in stores would only lead to the proliferation and littering of paper bags, and pointed to studies showing that paper sacks require more energy to produce, consume more space in landfills and emit more methane gases during decomposition.

Yaffe ruled Friday that an environmental impact report would settle the paper vs. plastic debate, Wadden said...

-
Congress Could Fix Bush-Era Court Attack on the Clean Water Act

excerpted from:
http://unearthed.earthjustice.org/2009/02/clean-water-act-is-broken.html

2/17/2009--The Clean Water Act, despite being one of our nation's most potent environmental protection laws for three decades, has an Achilles' heel -- a one-word weakness that the U.S. Supreme Court has expanded into an enormous loophole.

In decisions handed down in 2001 and 2006, the Supreme Court seized on that word -- "navigable" -- to make rulings that neither friend nor foe of the Act could predict, and none of us can live with. Effectively, the Supreme Court broke the Clean Water Act by saying Congress meant that the Act's protections apply only to "navigable" waters when it passed the Act to eliminate water pollution back in 1972. Therefore, only an act of Congress can mend this potentially fatal injury.

Fortunately, just such a bill is before Congress, called the "Clean Water Restoration Act." Introduced under an unfriendly administration, this proposed law is much more likely to be passed now. It will eliminate the word "navigable" from the Clean Water Act and replace it with the more familiar legal phrase, "waters of the United States," so that all waters -- not just those that are navigable -- are protected...

-
Schwarzenegger's effort to expedite 10 highway projects angers environmentalists

1/11/2009, excerpted from

http://www.latimes.com/news/local/la-me-enviro11-2009jan11,0,2221.story

Schwarzenegger is proposing that the California Department of Transportation forge ahead with some construction projects that are tied up in court over environmental issues. One is a $165-million carpool-lane expansion on U.S. 50 in Sacramento that a judge has delayed because of the amount of greenhouse gas emissions it could generate, among other concerns.

Protections would also be lifted on a freeway-widening project through an ecologically sensitive area of coastal San Diego County and on a controversial plan to drill a tunnel into the Berkeley Hills. And Schwarzenegger wants to empower a panel of his appointees to waive environmental rules on other projects....

...Schwarzenegger is proposing to largely exempt the 10 highway projects from the California Environmental Quality Act, a 1970 law requiring review of big projects and efforts to offset any deleterious effects on the surroundings....

The Democrats who dominate the Legislature have so far demurred.

They are offering instead a fast-tracking process for the projects that conservationists find more acceptable. Administration officials say that will not get construction moving quickly enough...

-
Governor Proposes "Bad-Economy" Exemption from Eco-Laws for Road Projects

From PCL Insider, 11/14/2008
http://org2.democracyinaction.org/o/5056/t/1923/blastContent.jsp?email_blast_KEY=1081918&t=


Should we try to help fix the state's fiscal crisis by pulling our punches on the climate crisis? Governor Schwarzenegger seems to be heading in that direction. His Economic Stimulus Plan, released last Thursday, calls for "environmental process exemptions" for Proposition 1B bond projects, bypassing the California Environmental Quality Act (CEQA). In essence, the Governor is claiming that the economic benefit of getting transportation and flood protection projects underway quickly will outweigh the benefits we'll get from conducting careful environmental reviews that would ensure we're funding the best projects while simultaneously reducing greenhouse gas emissions, air pollution, and other negative impacts.

As the Governor's staff explained it:
http://gov.ca.gov/index.php?/speech/10973/

"KEMPTON: Well, let me answer the first part of the question first. If you remember, back in 1994, we actually got exemptions from CEQA for much of our toll bridge seismic retrofit program. That was an emergency issue. We think this, the state of the economy, is a similar type of an emergency with respect to needing to respond to a serious problem. And so we're going to take some of the same kind of exemptions that we received back in 1994 and ask the legislature for that kind of relief. So we would identify a group of projects that would be exempt from CEQA for some period of time and then we would also ask for imposition of a permit accelerating process which will allow for early settlement of permit issues."

-
How California Laws Protect Oak Trees

October 2008

California Oak Report
http://www.californiaoaks.org/

MND: Full Mitigation Price for Every Stump
The California Environmental Quality Act (CEQA) oak woodland mitigation standards apply equally to mitigated negative declarations (MND) and environmental impacts reports (EIR). However, MNDs must meet a much more stringent legal standard for the reduction of oak woodland impacts than an EIR.

For an EIR, oak woodland impacts must be reduced to the extent feasible within the law, with the local Board of Supervisors or City Council ultimately deciding project oak mitigation sufficiency. Local officials prerogative lies in their EIR discretionary power to invoke an “overriding consideration” in the interest of the public good. Unless it can be proven in court that local officials failed to proceed as required by law, their project decision is final.

For a MND, mitigation measures must reduce all substantial oak woodland impacts to a less than significant level. Local officials have no mitigation discretion to exercise in a MND; the MND is required to scientifically and factually demonstrate that every potential oak woodlands impact has been reduced to less than significant. Significant oak woodland effects are the sum of wildlife habitat impacts and carbon dioxide emission impacts due to woodland conversion to a non-forest use.

Developers prefer MNDs to EIRs because of the cost savings. Therefore, it is important to be vigilant in assuring the project complies fully with CEQA oak woodlands mitigation law. The fact is that the cost of mitigating oak impacts in a MND are proportionally much greater than for an EIR. Less room to spread the development cost often leads to MNDs cutting oak mitigation corners. Lawsuits filed against inadequate oak woodland MNDs are very effective because they defeat the pecuniary motives of the developer and are easily proved in court.

-

Fresno Loses Environmental Law Suits at High Rate

Developer-Friendly Interpretation of State Law by City Leads to Numerous Losses in Court

http://www.fresnobee.com/news/local-news/story/899308.html

excerpted from the Fresno Bee, Sept. 28. 2008

Since the start of 2005, 10 CEQA actions against Fresno have been decided, and the city won just once. Fresno settled six cases and lost three -- the losses coming in appellate court decisions made during a 14-month period ending in May....


Fresno finds that projects are likely to produce significant effects far less often than other similar-sized cities in California, The Fresno Bee found in an analysis of CEQA records sent to the state.

In a 10-year period ending in July, Fresno required a full environmental review for nine out of 73 projects, or 12% of the time, according to the CEQA database.

By comparison, California's 20 biggest cities, except Los Angeles and San Diego, required a full environmental review for 26% of projects.
The results seem to indicate that Fresno is reluctant to require a full review, said McCoy of the Information Center for the Environment, which maintains the database....

The city erred by allowing developer DeWayne Zinkin to pay just $44,000 for the traffic the shopping center would add to Highway 41, when Caltrans estimated the fee at $307,000, the court said. Fresno's decision would leave the public "holding the financial bag," the court said...

As a result, the city failed to make a reasonable effort to offset the effects of development, a key CEQA requirement, the court said.

The city violated the other key part of CEQA by failing to inform the public about the likely effects of the shopping center, the court found.

The court said the city's reviews were "deeply flawed": Instead of comparing the project's expected effects against existing conditions, the city wrongly based its review on a comparison with a "massive hypothetical office park," creating a "misleading report." The city staff misrepresented findings to the City Council, which received them at the last minute, the court said...

-

Governor Pushing for New Limits on CEQA--the Law that Now Makes Developers Pay to Fix the Problems they Cause

http://org2.democracyinaction.org/o/5056/t/1923/blastContent.jsp?email_blast_KEY=1080849&t=

From 10/17/2008 PCL Insider:

WHICH WAY NOW? QUESTIONS REMAIN ABOUT FOLLOW UP TO CALIFORNIA'S NEW LAW LINKING LAND USE AND GLOBAL WARMING

Last month, as the deadline to sign or veto proposed legislation drew near, Governor Schwarzenegger approved SB 375 (Steinberg), which links land use planning, transportation funding, and housing policy in an attempt to promote smarter developments that will help the state meet its greenhouse gas emission reduction mandate. SB 375 offers incentives to promote sustainable development by redefining how the California Environmental Quality Act (CEQA) will be applied to the best-planned communities. For example, residential and mixed use development projects that help the region reach its emission reductions goals won't have to analyze certain climate impacts during the CEQA process. The bill strikes a delicate balance between promoting sustainable growth while ensuring environmental review is not jeopardized.

However despite the delicate balancing act in SB 375, in his signing statement the Governor has suggested further limitations to CEQA for infrastructure and commercial projects. The Governor's suggestions would tip the scales and could significantly reduce the ability of local residents to participate in the CEQA process to push for better plans and projects.

Senator Darrell Steinberg, in a formal letter responding to questions raised about the role of CEQA in addressing global warming (see page 14 of the linked document), committed to discussing the issue next year. Senator Steinberg has promised to invite all interested parties. Staff from the Planning and Conservation League will be there to defend CEQA against aggressive efforts to weaken California's most power tool to protect public health and our environment.

-----
News from the Center for Biological Diversity

Solar Roofs at WalMart?

8/29/2008

http://salsa.democracyinaction.org/o/2167/t/5243/petition.jsp?petition_KEY=1365

Wal-Mart, the largest private purchaser of electricity in the United States, claims that environmental sustainability is among its chief goals. The retailer's much-hyped sustainability initiatives include being supplied by 100-percent renewable energy. Going green is how Wal-Mart's now branding itself.

Except, of course, when it comes to taking more than token action to meet its renewable power objectives.

If Wal-Mart covered the roofs of its stores with solar panels, the resulting solar acreage would roughly equal the size of Manhattan, an island of 23 square miles. But with more than 4,000 Supercenters, Discount Stores, and Sam's Clubs, Wal-Mart has only proposed to install solar panels on 22 of its stores. In other words, after claiming for years that it wants to be supplied completely by renewable energy, Wal-Mart has not even come close to reaching 1 percent of this goal.

Wal-Mart is skirting California law and refusing to incorporate cost-effective features like solar panels in new stores throughout California.

The California Environmental Quality Act requires that new projects in California adopt all feasible measures to lessen the significant impacts of their greenhouse gas emissions. There is simply no good reason for Wal-Mart to refuse to incorporate solar panels into its store designs. That's why the Center for Biological Diversity is taking the massive corporation to court for its failure to reduce the greenhouse gas emissions generated by new proposed Wal-Mart Supercenters in the Golden State.

Please sign our petition to Wal-Mart calling for it to follow the law and live up to its sustainability goal. And please forward this email to as many people as possible, so that the retail giant will hear loud and clear how many of us are outraged by its hypocritical business practices.

-----
An Update on the California Environmental Quality Act, by the PCL Foundation

July 2008

http://org2.democracyinaction.org/o/5056/t/1923/blastContent.jsp?email_blast_KEY=1078219&t=

PCL BACKS NEW LEGISLATION - SB 68 (KUEHL) - TO ADD CLARITY TO THE CEQA PROCESS

Keeping with our proud tradition of defending and improving the California Environmental Quality Act (CEQA), our state's most important tool to protect public health and the environment, PCL is once again partnering with Senator Kuehl to pass legislation to make important clarifications to the CEQA process.

This new legislation, SB 68 (Kuehl), makes clear which parties must be included and named in CEQA litigation.

Under current law, the parties that must be named in a lawsuit are all of the "recipients of approval" - those given approval for a particular project. However, it's often very unclear who those parties actually are. For example, in some cases the developers appoint project managers, who are not necessarily recipients of approval, to represent them in the CEQA process. If a party should have been named but was not, the entire CEQA case is thrown out of court. To ensure an important case is not thrown out, local residents must cast a wide net and include all the parties they believe could potentially be recipients of approval.

SB 68 makes clear that the recipients of approval are those entities listed in the official Notice of Determination or Notice of Exemption.

This simple and modest policy change helps ensure that important CEQA cases can be heard by our courts and that the entire CEQA process is fair and just. This important measure passed both houses of the Legislature earlier this month and is currently awaiting the Governor's signature.

CEQA Q&A Forum

We recently began the CEQA Q&A Forum to provide a mechanism for your questions about the environmental review process to be answered. In some cases, we've needed to revise the question or make it hypothetical to avoid a potential conflict of interest with the law firms assisting with this Forum.

To submit a question, please contact Justin Saydell at jsaydell@pcl.org. We expect to be setting up this Q&A Forum on our website so that you will have all of this available at your fingertips.

Question: I just found out that the City filed a Categorical Exemption without sending me a copy. I saw my request and self-addressed, stamped envelope still in the file. Is there any remedy for failure to provide requested notice?

Answer: In general, courts take the notice requirements of CEQA seriously. Section 21092.2 contains limiting language that failure to send notice is not a CEQA violation if the agency has achieved "substantial compliance" with the requirements of the section. There are no cases that address the notice requirements of Section 21092.2, so there is no definitive answer to the question.

From the language of Section 21092.2, it seems that if an agency receives numerous written requests, and responds to most of them properly, then failure to provide notice to one or two parties would not be a violation. If, on the other hand, the agency fails to provide notice to a large number of parties who requested it, the agency has violated CEQA.

The answer likely depends on how many people requested notice, and of that total, to how many (or perhaps to what percentage) did the agency properly provide notice.

Answer provided by: Arthur Pugsley of Chatten-Brown and Carstens

Question: What do you do when the agency checks "no impact" when there actually would be?

Answer: Although the duty of investigation is on the lead agency responsible for deciding whether to approve the project, the public does have a role to play in making sure the lead agency has accurately assessed all the potentially significant environmental effects of a proposed project.

CEQA's "fair argument standard" puts squarely the burden of environmental investigation on the lead agency. If there is any evidence in the record that the proposed project MAY have a significant adverse effect on the environment, the lead agency must first incorporate changes in the project that will either avoid or reduce the project's significant adverse effect on the environment, or prepare and certify an environmental impact report before approving the project.

Despite the duty placed on the lead agency, if the lead agency's initial study has a check in the "no impact" box on one of the categories within the biological resources section, for example, of Appendix G of the CEQA Guidelines, which is normally the form used to develop the initial study, you now have a duty to put forth substantial evidence in the record that demonstrates that the project MAY have a significant adverse effect on the environment.

What is substantial evidence? Substantial evidence includes facts, reasonable assumptions based on facts, and expert opinion supported by facts. So don't send a letter to the lead agency that says: "I think there is an endangered kit fox den on the project." Or, worse, "I think this project stinks and is just going to ruin the environment." Instead, provide facts. If the affected property has magnificent views, or some rare or protected plant species take pictures and submit them with your description of what unique resources are out there. If there is a local biologist who will confirm the existence of a kit fox den, then document this individual's expertise and have him or her describe the location of the kit fox den.

If you provide the factual information and get it into the record by commenting on the lead agency's initial study, you have done your job and now CEQA will work for you.

Answer provided by: Bill Yeates of Kenyon-Yeates LLP

-----
What Looks Like a River but Isn't?

A Sneak Attack on the Clean Water Act at the L.A. River by Federal Bureaucrats could Crush Efforts to Restore Urban Creeks and Rivers Throughout California and the USA. By redefining protected rivers as only ones wet and deep enough to be "navigated", a major hurdle for developers could be removed



Is the L.A. River up a creek?

If the waterway is not officially deemed to be 'navigable,' many of its tributaries could lose important protections.

By Deborah Schoch, Los Angeles Times Staff Writer
June 1, 2008

Over the years, the Los Angeles River has been redrawn, clad in concrete, tainted with chemicals, invaded by countless Hollywood car chases, dismissed as a glorified storm drain.

Now comes the latest slap. The city's river can't even float enough boats to qualify as a full-fledged navigable waterway, according to the Army Corps of Engineers.

River advocates are outraged.

"They're just wrong. That's the simple version of it. We've done kayak trips from the Valley to Long Beach a dozen times in the past 10 years," said poet and writer Lewis MacAdams, founder of Friends of the Los Angeles River.

It doesn't end there. What might seem a minor bureaucratic tweak by the Corps could have a domino effect across the river's 834-square-mile watershed, say worried environmentalists and some federal, state and local officials.

Critics say the draft decision issued by Corps regulators weakens federal water protections for many seasonal streams that feed the river. They say this could translate into more mountain development and more dirty runoff flowing through cities to the Pacific.

"Practically speaking, the March 20 decision would open up a number of tributaries and streams to the argument that the Clean Water Act doesn't apply," said David Beckman, senior attorney at the Natural Resources Defense Council.

But how is the Clean Water Act -- among the strongest federal laws guarding rivers, lakes and streams -- linked to the ability to float a boat down the Los Angeles River?

The answer is cloaked in bureaucracy and court rulings.

A 2006 U.S. Supreme Court decision weakened the power of the Clean Water Act to protect certain seasonal streams. Federal regulators who decide whether a stream is protected by the law must first find the closest navigable waterway. Then they have to decide whether the stream has any effect on that waterway.

If it doesn't, landowners may not be required to obtain certain federal permits before building homes, roads or other projects over those seasonal streams. Their plans, however, would still be subject to local zoning laws and building codes.

In a case involving the Los Angeles River, regulators determined that most of it isn't navigable in the first place. So some streams on the edges of its watershed -- most in the mountains and foothills ringing Los Angeles -- may lose some federal protection, critics say.

The local Corps officials who wrote the March 20 draft decision say they strictly followed guidelines developed after the Supreme Court decision.

"When we looked at the L.A. River, we did not find evidence of navigation" beyond the Pacific Coast Highway bridge in Long Beach, two miles north of the ocean, said Aaron Allen, the regulator who wrote the draft decision.

He stressed that the decision does not weaken any federal laws that protect the water in the river, which is fed in part by reclaimed water from sewage treatment plants. He agreed that seasonal streams far up in the watershed, however, could have less protection.

But in the face of critics' concerns, the Corps has withdrawn the navigable river decision pending further study. The results of that review are expected within days.

Col. Thomas Magness, commander of the Corps office that oversees part of the Southwest, emphasized that the Corps is working with the U.S. Environmental Protection Agency on a final decision.

He promised, "it's going to be something we can all understand and defend." He said it was "purely speculative" to conclude that designating the Los Angeles River as nonnavigable would lead to more lax development standards over streams. "I would not begin to throw in the towel and submit to that conclusion."

Any proposal to fill in or build over streams will still be reviewed on a case-by-case basis "on its own merits," he said.

Yet the Los Angeles River case is attracting interest in Washington and elsewhere in part because it's among the first in the nation after the Supreme Court decision.

"The implications of these decisions could be quite large," said David Smith, chief of wetlands regulation at the EPA southwest region, who has met twice with Corps officials while trying to change their decision.

Los Angeles River defenders such as Rep. Henry A. Waxman (D-Los Angeles) and Nancy Sutley, Mayor Antonio Villaraigosa's top environmental deputy, have written letters to federal officials, criticizing the river ruling.

"If the Corps of Engineers applies a similar approach to other rivers, protections against water pollution that are now taken for granted could be seriously eroded throughout the nation," Waxman wrote in a letter to the EPA. He said the draft decision could undercut Clean Water Act rules governing waste discharges, dredging, oil spill prevention and water quality standards in much of the Los Angeles River basin.

Meanwhile, local river enthusiasts are rushing to collect photos and videos of friends and relatives paddling on the river in canoes and kayaks.

Their goal is to prove that yes, indeed, just like the Mississippi and the Potomac, Los Angeles' river is worthy of navigation -- maybe not by cargo ships, but at least by canoes.

Web of tributaries

The drama got its start not on the river but in a far-flung web of tributaries in the Santa Susana Mountains north of Chatsworth.

There, rancher Wayne Fishback hoped to fill some seemingly dry stream beds to build a road and prevent erosion on his sweeping mountain property above Brown Canyon Wash, a tributary of the Los Angeles River. He asked for guidance from the Corps of Engineers, which regulates parts of the Clean Water Act.

Fishback's request landed on the desk of Aaron Allen, chief of the Corps' North Coast office in Ventura, who holds a UCLA doctorate in fluvial geomorphology, or how streams shape the land.

Ten years ago, Allen's job would have been easier. In those days, federal clean-water laws typically covered the seasonal streams, marshes and pools common in the arid West.

All that changed with the 2006 Supreme Court decision in which Justice Anthony Kennedy wrote that the Clean Water Act would apply to a water body if it had a "significant nexus" with "traditional navigable waters."

So Allen's review ballooned into a full-scale review of the Los Angeles River. He concluded that only 1.75 miles of the river upstream from the ocean is navigable.

The remaining 49-mile stretch -- which cuts north through southern Los Angeles County and then west into the San Fernando Valley -- did not meet the legal test of being navigable, he wrote.

"Presently, the occasional use of kayaks and/or canoes on other reaches of the river are sporadic and do not support any associated commerce," Allen wrote in the March 20 memorandum. Nor could he find evidence of historical navigation.

"Finally, the capacity to provide navigation at some point in the future is highly doubtful given the river's configuration, hydrology and fundamental use as a flood control channel."

Memo leaked

For Fishback, that was good news: His land lies so far upstream from the PCH bridge that he probably can fill four of his streams without navigating the time-consuming permit process.

But when the Corps memorandum was leaked to river advocates in April, the uproar ensued.

George Wolfe, a Venice-based kayaker who founded the satire website www.lalatimes.com, helped create a video last year featuring him commuting by kayak on the river in a business suit.

"As a boater with some 30-plus years of boating I can honestly say that it's a perfectly navigable river," he said in a letter submitted to the Corps along with the video.

Some local officials are urging the Corps to conduct its review in public.

"My agency wasn't consulted, wasn't made aware of it," said Tracy Egoscue, executive officer of the Los Angeles Regional Water Quality Control Board, who learned about the decision from the EPA and criticized the lack of citizen input.

Magness said the Corps invested countless hours in the decision and conferred with other federal, state and local officials. "By no means have we done anything without public involvement."

But for Egoscue and others, the designation reaches beyond the thicket of environmental bureaucracy.

Egoscue characterizes the Corps' decision as showing "a fundamental lack of understanding and respect for the resource to come in and make a decision without citizen involvement."

"It's not just about the law and the permits this board writes," she said. "It's about the perception of the river. . . . The Los Angeles River is our Potomac."

-----
A Bill to Toss Out Old EIR's is Being Debated in Sacramento

an Action alert from the PCL:

SB 1165, one of the Planning and Conservation League's top priority bills for 2008, is headed for a vote in the Senate possibly as early as Tuesday, May 27^th. We need your help! SB 1165 (Kuehl) ensures greater transparency in the creation of draft Environmental Impact Reports (EIRs) and requires EIRs older than five years to be reviewed again for new impacts before they can be used to approve a project.

This landmark bill faces significant opposition from development and business interests and needs your help.

Call Your Senator on Tuesday, May 27^th and Ask Them to Support SB 1165!

Use this link to find your Senator:

http://www.leginfo.ca.gov/yourleg.html

Please call the number at your Senator's Capitol Office (rather than calling a district office), identify yourself as living in the Senator's district, and ask for an AYE vote on Senate Bill 1165. See additional talking points below…

SB 1165 ensures that local residents have the opportunity to protect their quality of life any time a new development is proposed. By improving public participation, SB 1165 will result in better projects and thus, less litigation.

WE NEED YOUR HELP!

Please call First Thing Tuesday Morning to ask your Senator to vote YES on SB 1165!

TALKING POINTS FOR YOUR CALL

KEY POINTS:

1. SB 1165 puts the public on a level playing field with developers during the CEQA process. When developers are allowed to draft the environmental documents, the fox is allowed to guard the henhouse. The public has the right to know if those with a financial stake in the project are the same ones evaluating the project's impacts. SB 1165 gives the public access to this information.

2. SB 1165 will NOT inappropriately chill important communications between a developer and the public agency. If those communications are appropriate, they can be public. If they are not appropriate, SB 1165 will discourage them and chill the developer's undue influence.

3. SB 1165 ensures EIRs reflect current circumstances and will reduce litigation. Today, even when a city wants a subsequent review of old documents, they can be bullied into simply approving a project. SB 1165 will give the cities and counties a chance to take public comment, update an old document, and avoid litigation.

4. SB 1165 is carefully crafted to apply only to projects before they are approved. Despite the fearmongering from the opposition, homes that are partially built will NOT be put on hold for a new review after 5 years. SB 1165 applies only to those instances when a developer wants to dust off an old EIR to secure project approval. These types of decision should be based on a current document.

CALL TUESDAY & TELL YOUR SENATOR TO SUPPORT SB 1165 - SUPPORT PUBLIC PARTICIPATION!

-----
Oil Company Wrecks Conservation Easement in Wyoming; Could It Happen Here? Legal Advocates Get Ready for Other Attacks

http://www.lta.org/newsroom/npr_031108.htm?zbrandid=4120&zidType=CH&zid=182389&zsubscriberId=1002028473

http://www.npr.org/templates/story/story.php?storyId=88038482

All Things Considered, March 11, 2008 · When people commit to conserving land, the commitment is often meant to last forever. This is true not only of national and state parks, but also of private land.

Private conservation agreements have protected millions of acres across America, but an unanswered question looms. If circumstances change, can "forever" be undone? That question is at the heart of a legal battle in Johnson County, Wyo.

The Land

The land in dispute is a ranch. It spans a thousand acres in a lush valley surrounded by sage and desert. Giant sprinklers irrigate fields of alfalfa and millet amid cottonwood groves.

"We named it Meadowood because we thought it fit the character of the landscape," says Paul Lowham. He and his wife owned the ranch in the early 1990s.

At the time, developers in many parts of Wyoming were buying up scenic ranches and carving them into home sites. The Lowhams wanted to keep their ranch intact — permanently — and they saw a way to do that.

The Promise

"We placed a conservation easement on the property," Lowham explains.

A conservation easement is a legal document that restricts development. It's an increasingly popular tool for protecting land from sprawl.

The Lowhams' easement said that their ranch could never be subdivided and could only be used for agriculture. Forever.

"Forever's a long time," Lowham says, "but certainly that was a commitment that our family made when we placed the easement on it."

They donated the easement to the county, and in return for this charitable gift, the Lowhams received a federal income tax deduction of more than $1 million. That was the estimated value of the development rights they gave away.

New Owners, New Circumstances

In 1999, the Lowhams sold the ranch to Fred and Linda Dowd. The Dowds understood that the land came with permanent restrictions.

"I didn't see that as a problem then," says Fred Dowd. "I do see it as a problem now, because I never thought about unforeseen circumstances coming up and making this a nightmare for us."

That "nightmare" started when an energy company showed up to explore for natural gas on the ranch.

In Wyoming, just because you own a piece of land doesn't mean you own the minerals beneath it, and the person who owned the minerals on the Dowds' ranch had every right to come on the property and drill. The conservation easement couldn't stop it.

So the Dowds watched while drilling rigs came on their land and poked holes in their fields. Workers laid pipelines, cut roads and spread weeds. Fred Dowd feared his land would soon be worthless for agriculture.

"If you nose around, you can find some ranches that have been ruined by mineral development," he says. "And if they had a conservation easement on it that says they can't do anything but farm, and it's ruined for farming, that will destroy them. It would destroy us."

An Agreement Undone

The Dowds approached Johnson County's elected officials.

"The Dowds didn't feel the conservation easement had any value at all if they could just be drilling wherever," says Tracy Rhodes, a county commissioner at the time. "They immediately wanted to know what the commissioners thought about dropping the agreement."

Marilyn Connolly was also a county commissioner. "There were discussions on how, how are we going to handle this, and how can you terminate something that was supposed to be forever?" she recalls. "But the thought of having those wells drilled and the extra roads ... didn't seem like it melded very well with what that easement was supposed to be doing. That's the reason I voted to terminate the easement."

The vote was unanimous. In 2002, just nine years after the land had been set aside forever, forever was rescinded.

Robb Hicks, owner of the local newspaper, the Buffalo Bulletin, was furious when he learned that the easement had been undone.

"With these perpetual easements, the two parties can't just get together and say, 'You know what, we changed our mind,'" he says. "I think forever means forever."

And his anger grew when he learned what happened next. The mineral development didn't ruin the ranch for farming, but now — with the easement removed — the Dowds did exactly what they had agreed never to do. They put part of the ranch up for sale as a new home site for $1.2 million.

"I don't have a problem with people profiting off of buying and selling property," Hicks says. "I do have a problem with people going to the county commission and saying, 'Oh, there's all this development on our property, and my goodness we've been so negatively impacted, and you need to remove all of this, and oh, by the way, afterward, we're going to make a lot of money off of it.' "

So he sued, and the lawsuit had broad implications.

A Dangerous Precedent?

Nationwide, conservation easements protect a vast amount of land — more than four times the area of Yellowstone National Park. This growing network of private conservation lands could be threatened if that word — "forever" — turns out not to have teeth.

"It could have some devastating consequences," says law professor Nancy McLaughlin of the University of Utah. "If the case stands and the easement is terminated, it would encourage speculators across the nation to try their hand at breaking these perpetual easements, because they're going to want to unlock the millions and millions of dollars that are inherent in the otherwise restricted development and use rights."

McLaughlin had hoped that Hicks would prevail in court and that the easement would be restored, but last year the Wyoming Supreme Court dismissed the lawsuit. Now, Wyoming's attorney general plans to take up the case. So the fight continues.

Meanwhile, the Dowds regret that they ever bought the ranch. They say they've spent $50,000 to defend themselves in court, and they've had to defend their reputations in public.

"We did not buy the ranch and say, 'Well, gee, if we can buy this property and get rid of the conservation easement, we can make a quick buck,' " Fred Dowd says. "That was not our intention at all."

In fact, the Dowds never did sell off a piece of the ranch. They've kept it intact, at least for now.

But in the future, this property and thousands of others that have supposedly been protected forever are sure to meet new challenges. Many people will be forced to ask, should a commitment made by others a decade ago — or a century ago — still be honored? And if not, who gets to decide when "forever" ends?

-----

Oregon Voters Overturn Sneaky Developer Windfall Law

Voting 62% in favor in last November 2007’s statewide election, Oregonians chose to overturn a law that allowed developers to sue the government for hundreds of millions of dollars in damages for restrictive zoning regulations.

Their vote overturns the November 2004 approval by state voters of Measure 37, which simply stated, allowed developers to demand huge payments from the taxpayers anytime the government limited what developers could do with their land.

The group that originally sponsored Measure 37, Oregonians In Action, has posted a furious rebuttal to the turnabout by the voters. Read it at http://www.oia.org/ApartytoTyranny.htm

The campaign to pass Measure 37 masked the true beneficiaries of the proposal. Ads prominently featured a 92 year old grandmother who had been prevented from breaking up her land to give to her children. But the real beneficiaries of Measure 37 were big landowners, who, in Portland, for example, demanded $250 million from the City which had scaled down their development rights.

California voters in November of 2006 faced Proposition 90, which would have similarly required the public to pay any landowner who felt that the government had devalued their land. Voters here rejected it by 53% No, 47% yes. Proposition 90 was also a stealth measure in that it included a populist-themed ban on the government using its eminent domain powers to forcibly buy private land if the land was to be resold to another private developer, but also included the payment to landowners for any government regulations.

Coming up in the June 2008 California election are two measures that deal with eminent domain.

Proposition 98 is similar to Proposition 90 and also aims to wipe out rent control. http://www.sos.ca.gov/elections/bp_06032008_direct_primary/prop_98.pdf

Proposition 99 is only aimed at halting the ability of the government to forcibly buy private property to sell to developers. http://www.sos.ca.gov/elections/bp_06032008_direct_primary/prop_99.pdf

----------------------------

FOR MORE INFORMATION ON THE OREGON DEVELOPER WINDFALL LAW:

See http://www.yeson49.com/2007/08/maps.html for maps of Oregon landowners who were to receive the windfall from Measure 37.

See http://www.yeson49.com/2007/07/oregon_stories.html for stories on local effects of Measure 37.

-----------------------------------------------

(a summary from http://en.wikipedia.org/wiki/Oregon_Ballot_Measure_37_%282004%29)

The law enacted by Measure 37 allows property owners whose property value is reduced by environmental or other land use regulations to claim compensation from state or local government. If the government fails to compensate a claimant within two years of the claim, the law allows the claimant to use the property under only the regulations in place at the time he/she purchased the property

As of March 12, 2007, 7,562 Measure 37 claims for compliance payments or land use waivers had been filed spanning 750,898 acres statewide in Oregon.[24]

The claims filed include mobile home parks in sacred native burial grounds, shopping malls in farmland, and gravel pit mines in residential neighborhoods. There are no provisions in the law that public notice must be provided to neighboring property owners when a claim is filed. Because municipalities can not afford the billions in compensation, the laws have been waived in every case. (See: http://www.pdx.edu/media/i/m/ims_M37brainerdreport.pdf for more information.)

Claims filed in Portland, Oregon, by December 4, 2006, totalled over $250 million. Many of these claims were filed by major area land developers.

in 2007, the Oregon legislature placed Measure 49 on the November 6, 2007 special election ballot. It passed with 62% in favor.[29][30] The measure overturns and modifies many of the provisions of Measure 37.[31] The Legislature stated that it would restrict the damaging effects of Measure 37 by limiting some of the development that measure permitted.[32]

This measure protects farmlands, forestlands and lands with groundwater shortages in two ways.

First, subdivisions are not allowed on high-value farmlands, forestlands and groundwater- restricted lands. Claimants may not build more than three homes on such lands.

Second, claimants may not use this measure to override current zoning laws that prohibit commercial and industrial developments, such as strip malls and mines, on land reserved for homes, farms, forests and other uses.

---------------------------

Measure 37 hammers Portland

Some of city’s richest make land-use claims, which now total $250 million

The Portland Tribune, December 19, 2006

The city of Portland is facing $250 million worth of legal claims filed just before a key Measure 37 deadline.

“It’s our worst fears, it really is,” said Chris Dearth, who heads the city’s Measure 37 program. “It affects all parts of the city. … Many, many neighborhoods will be seriously affected by this.”

Measure 37, approved by voters in 2004, allowed landowners to file claims for compensation for decreased property value caused by regulations. The influx was prompted by a Dec. 4 deadline to claim past damages.

The claims undermine the city planning process and could “change the face of the city,” Dearth said.

It’s not just the dollar figure and the potential impact to Portland neighborhoods that make the claims filed under the state’s property rights law noteworthy. In contrast to the Measure 37 poster child, then-92-year-old Dorothy English, the new claims are being filed by some very prominent figures – such as companies owned by Jay Zidell and Mark Hemstreet – using some of the city’s most well-heeled law firms.

“It’s a whole new ball game,” Dearth said. “It’s not the mom and pop, Dorothy English-style claim anymore.”

The biggest claim, filed by Zidell for his South Waterfront properties, is for about $120 million. He has put his claim on hold while he negotiates with the city over his development plans. …

For full story:

http://www.portlandtribune.com/news/story.php?story_id=116649078192709100