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Governor Says Yes to Some Land Use Legislation

CP&DR Staff on
Nov 1, 2006

Although many land use bills failed to avoid Arnold Schwarzenegger’s veto pen, the governor did sign some pieces of land use legislation this fall.

One approved bill, SB 1535 (Kuehl), increased the filing fees for environmental documents to be reviewed by the Department of Fish and Game (DFG). The bill bumps up the cost of filing an EIR from $800 to $2,500, and boosts the negative declaration fee from $1,250 to $1,800. According to environmental groups that supported the bill, DFG reviews only about 10% of the environmental documents it receives because of funding and staff shortages.

The DFG fees for reviewing environmental documents prepared by other agencies are unique in state government; no other agency has such a fee. Developers have chafed at the fees and local governments have complained about having to collect the money, but courts have upheld the fees (see CP&DR Legal Digest, May 2000). The fees had gone unchanged for years. The additional revenue should enable DFG to review all environmental documents it receives, according to bill supporters.

While the DFG fee bill affects the entire state, another bill signed by the governor, AB 1457 (Baca), impacts only one dark corner of San Bernardino. The legislation is a creative attempt to revitalize a troublesome park, decrease criminal activity and provide new housing.

The legislation permits the City of San Bernardino to give 14 acres of the 43-acre Seccombe Lake Park to the city’s redevelopment agency, which must come up with replacement parkland nearby. The redevelopment agency wants to sell the property for private development of up to 80 houses and town homes in a new, gated community.

The city acquired the downtown parkland through purchase and eminent domain after World War II and deeded it to the state about 25 years ago for development of a regional park. That plan died, though, and the state returned the park to the city. For years, the park has been the site of homeless encampments and criminal behavior — and not much baseball or recreational fishing. Earlier this year, though, the city began removing walls and overgrown vegetation to open up sight lines. City officials hope the cleanup and planned housing project will entice more people to recreate in the park.

A bill that would give property owners with land use disputes direct access to federal court has passed the House of Representatives and could be taken up by the Senate this month.

The proposed Private Property Rights Implementation Act, HR 4772 by Rep. Steve Chabot (R-Ohio), would permit property owners to bypass state courts and take claims over local land use regulation directly to federal court. As it now stands, federal courts generally require property owners to go to state court first with claims that regulation has deprived them of property rights or civil rights. However, at least in the Ninth U.S. Circuit Court of Appeals, federal courts have been reluctant to consider claims that have been decided in state court. Thus, it is difficult for property owners to get heard in federal court, which many people believe would be a more favorable venue for property owners than state court.

Although passage of HR 4772 is a long shot during the lame-duck congressional session, local governments are worried. The bill would undermine local zoning authority and “create greater federal intrusion into local land use decisions,” according to the National League of Cities.

In one of the more lopsided land use elections in state history, Glendora voters rejected an elaborate rezoning initiative that would have permitted development of 338 houses on the site of a private country club and construction of a new golf course in the rugged hills above town.

The developer-written “Glendora Hillside Protection Ordinance” received only 9.4% of the 12,455 ballots cast during the special election on October 3.

Developer NJD, Ltd., for years has been attempting to build houses on about 400 acres in the hills of Glendora and the neighboring city of San Dimas. But those efforts have gone nowhere at City Hall and in court. So the developer went directly to voters.

Under the initiative, NJD would have essentially swapped its 400 acres in the hills for the 107 acres owned by the Glendora Country Club. The developer would build the country club a new golf course and other facilities in the hills. The developer would also build 338 houses on the relatively flat land now occupied by the 50-year-old country club. The initiative proposed amending the city’s general plan, and city zoning and grading ordinances to permit the new golf course and homes — although part of the golf course would have been built in San Dimas, which has not consented to the project. Country club members agreed to the land swap earlier this year.

NJD spent more than $1 million on the campaign and went as far as offering people grocery and gasoline gift cards if they agreed to fill out absentee ballots. After the overwhelming defeat, NJD representatives said they would again try to receive city approval for building up to 53 houses in the hills.

El Dorado County officials have reached an agreement with the Shingle Springs Band of Miwok Indians regarding a long-discussed casino just off Highway 50, a few miles west of Placerville. The agreement calls for the tribe to pay $104 million over 20 years for construction of carpool lanes on Highway 50, at least $78 million over 20 years to mitigate impacts on the community and $500,000 annually for local law enforcement, and for the tribe to offer hiring preferences for construction and casino jobs to El Dorado County residents.

The tribe has talked about building a 200,000-square-foot casino and 250-room hotel since 1998, but the county and landowners in the rural residential neighborhood next to the tribe’s 160-acre reservation have fought the project. Late last year, the Third District Court of Appeal threw out the environmental impact report for a freeway interchange that would serve the casino (see CP&DR Legal Digest, January 2006). The citizens group involved in that litigation, Voices for Rural Living, filed a new lawsuit in September over the proposed interchange, which is vital for the casino.

A Superior Court judge has thrown out an environmentalists’ lawsuit that contends the continued operation of windmills in the Altamont Pass area violates the state’s unfair competition law and the public trust doctrine.

The Center for Biological Diversity argued that the windmills — located along Interstate 580 between Livermore and Tracy — are illegal because they destroy wildlife, which is a public trust. However, Alameda County Superior Court Judge Bonnie Sabraw ruled that harm to wildlife does not equate to the destruction of property under the unfair competition law.

Environmentalists filed the creative lawsuit after failing to convince Alameda County and power companies to close down older windmills that state officials blame for killing about 1,000 raptors annually, including golden eagles, red-tailed hawks and burrowing owls (see CP&DR Environment Watch, August 2005). Environmentalists say operation of the windmills violates federal and state wildlife protection laws. An appeal of Judge Sabraw’s ruling is possible, according to Jeff Miller, of the Center for Biological Diversity.

Under a county-approved plan, power companies have closed some old power turbines and are supposed to replace the rest over 13 years with fewer, larger models that are expected to be safer for birds.

The case is Center for Biological Diversity v. FPL Group, Inc., Alameda County Superior Court Case No. RG04183113.

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