Half a century ago, farmers cultivating the fertile plains and valleys of Ventura County sprayed their crops with the miracle pesticide dichlorodiphenyltrichloroethane, a potent post-war product of American chemical ingenuity. Ventura County growers were not alone in taking advantage of DDT's characteristics. Because of its lethal and persistent effectiveness against a wide range of insects, the pesticide became popular with home gardeners, exterminators, timber producers, farmers and public mosquito-control agencies throughout the United States. In the 30 years it was in wide use, an estimated 675,000 tons of DDT were applied domestically, according to the U.S. Environmental Protection Agency (EPA). The peak year was 1959, when nearly 80 million pounds were applied in the United States. The EPA banned DDT use domestically in 1972, following revelations that the chemical harmed wildlife and threatened human health. Yet now, more than three decades later, many California growers are about to find themselves paying a long-delayed price for the pesticide's past popularity. In just one watershed in Ventura County, the cost to growers alone could be as high as $140 million in the first year, according to an estimate released in January. That eye-popping figure is the product of an important but widely overlooked regulatory process slowly grinding its way into place in California, with potentially far-reaching implications. Growers may find themselves forced to give up large swaths of productive land to serve as streamside pollution buffers. Homeowners could face escalating sewer fees. Urban and rural agencies could end up squabbling fiercely over who should bear the bulk of compliance costs. The regulations are known as total maximum daily loads, or TMDLs. They are a way of addressing water pollution from “nonpoint sources” - the diffuse runoff from agricultural fields and urban storm drains that, unlike emissions from factories and sewage treatment plants, lacks an identifiable discharge point where pollution controls can be installed and monitored with relative ease. A TMDL is a calculation of the maximum amount of a pollutant that a water body can receive and still meet standards established by states and tribes to protect the identified beneficial uses of that water, such as municipal supply, recreation, and support of aquatic life. A TMDL not only sets the total amount of a single pollutant that can enter the water body, it also divides the total load among all of the sources of that pollutant in the watershed and tells each discharger how much it may contribute. Although authorized under § 303 of the Clean Water Act of 1972, TMDLs and nonpoint pollution were largely ignored by state and federal regulatory agencies until relatively recently. The EPA did not even adopt implementing regulations for TMDLs until 1985, refining those standards further in 1992. And it has only been within the past decade that enforcement has begun, largely a consequence of a barrage of lawsuits by environmental organizations seeking to force the EPA and the states to adopt TMDLs for impaired streams and lakes (see , July 2002). The EPA is under court order or consent decrees in many regions to ensure that TMDLs are established, either by the state or by EPA. One such consent decree is in place for the greater Los Angeles region, including Ventura County, where the process of developing TMDLs for the Calleguas Creek watershed - home to scores of farmers now confronting the legacy of decades-old pesticide application - is the most advanced in the state and serves as a good illustration of the program's promises and pitfalls. The process of developing TMDLs is painfully slow and complex. It starts with what regulators refer to as the “303 (d) list,” a comprehensive listing of all impaired waters within their jurisdiction that states, territories and tribes are required to submit periodically to the EPA. In California, 687 water bodies have been reported to the EPA as impaired. the largest category being streams, creeks and rivers, with 435 listed. The next largest category is coastal shoreline, with 97 areas listed. Each listing identifies the specific pollutants for which the water fails to meet health and safety standards. In the Calleguas watershed, for example, those contaminants include salt, excess nutrients such as nitrogen, pesticides and PCBs, silt, fecal bacteria, and toxic metals such as copper, mercury and zinc. Once the pollutants have been identified, researchers have to figure out where they are coming from, how much of each can be discharged into the watershed under varying hydrological conditions without posing a risk, and how much each discharger will be allowed to emit. In a large watershed containing hundreds or thousands of potential sources - and with scientific data about precise health risks sketchy for many substances - this is a daunting and imprecise task. The consent decree compelling development of the Calleguas Creek TMDLs was signed in 1999, and so far only the standards for nutrients and salt have been completed. Those for historical pesticides (including discontinued ones such as DDT, which can remain in the soil for decades and wash into streams with every big storm) and PCBs are expected to be completed this year. Bacteria and metals TMDLs are being developed. Twenty percent of the impaired watersheds in the Los Angeles region (which includes Los Angeles and Ventura counties, along with small portions of Kern and Santa Barbara counties) have TMDL plans in place or in process, said Sam Unger, who monitors TMDL programs for the Los Angeles Regional Water Quality Control Board. That may not seem like much, but it puts the area well ahead of the statewide curve. Only 1% to 5% of the impaired watersheds in other regions in California have done the same, according to Cindy Lin, who oversees the TMDL program for the EPA's Southern California field office. Under the 1999 consent decree, regulators in the Los Angeles region have until 2011 to complete the process. Absent a court order, the EPA has not set a deadline for other areas. Strategies for controlling contaminated runoff vary. Farmers might change irrigation practices, or turn land near streams and other drainages into naturally vegetated buffers. Cities can install wetlands or other biological filters to treat storm flows or sewage plant discharges. In many watersheds, nearly every person and activity stands to be affected. “There's no bad guys out there,” said Richard Hajas, general manager of the Camrosa Water District in Ventura County and vice chair of the group developing the Calleguas watershed plan. “In this particular case, we're all the culprit.” Contacts: Cindy Lin, Environmental Protection Agency, (213) 244-1803. Sam Unger, Los Angeles Regional Water Quality Control Board, (213) 576-6784. Calleguas Creek Watershed Management Plan: www.calleguas.com/ccbrochure/cc.htm .

For planners, developers and local government officials, Gov. Arnold Schwarzenegger's budget proposal for 2005-06 might be as important for what it does not contain as for what it does contain. Notably, the budget does not have a new shift of funds away from local government, nor does the budget lay a new round of unfunded mandates on the locals. Instead, Schwarzenegger proposes to close a big part of the projected $9 billion deficit by slashing education and social service funding by nearly $4 billion. Still, he did reduce transportation spending by $1.5 billion, mostly through a suspension of Proposition 42, the 2002 initiative that directed gasoline sales tax revenue to road and transit projects. John Shirey, executive director of the California Redevelopment Agency, said it is important to remember that the budget for 2005-06 already has a shift of revenue from cities and counties to schools. The shift was part of the Proposition 1A agreement, in which state officials agreed not to raid local coffers in the future if cities and counties contributed $1.3 billion during this budget year and next. Voters overwhelmingly approved Proposition 1A last November. “We already gave $1.3 billion, and $250 million of that came from redevelopment agencies,” Shirey said. “It's kind of like it is forgotten already.” While most analysts say the 2005-06 budget proposal is more “honest” than past budgets, the spending proposal does not quite match the State of the State speech that Schwarzenegger gave shortly before delivering the budget. In his speech, Schwarzenegger emphasized the need to improve the state's infrastructure. “Californians can't get from place to place on little fairy wings. This is a car-centered state. We need roads,” the governor said. “Like Gov. Pat Brown before me, I intend to see that the government builds the roads that Californians need.” Yet the budget directs $1.3 billion worth of gasoline sales tax and $200 million in a public transportation account to the general fund. Part of the problem is that $1.2 billion that the governor had hoped to get from casino-owning Indian tribes has not materialized because of disputes with the tribes. Much like the Proposition 1A deal, the budget calls for a constitutional amendment that would prevent future Proposition 42 raids, starting with the 2007-08 fiscal year. Although transportation advocates have been slow to criticize the governor's budget, state lawmakers are raising questions. “We can't get around, as he said, on little fairy wings. But you can't build roads on little fairy wings either,” Senate Transportation and Housing Committee Chairman Tom Torlakson (D-Antioch) told the . Indeed, the governor delivered his speech only one day after the California Transportation Commission (CTC) issued its annual report to the Legislature - a report that stated right up front, “California's transportation program is in crisis and on the verge of collapse.” The report dwells on unfunded needs, project delays, economic damage due to congestion, and an uncertain future. If the state continues to suspend Proposition 42, “many, perhaps most,” of the projects in the State Transportation Improvement Program will be deleted, CTC Chairman Bob Balgenorth warned the Legislature. The proposed budget does promise to pay the Proposition 42 diversions back to transportation accounts, but over 15 years. And the budget does include $2.7 million for an environmental impact report on the proposed high-speed rail project. In his speech, Schwarzenegger tied transportation to housing - an interesting juxtaposition considering that the state Senate has combined the transportation and housing committees this year, and because local government officials have long complained that Sacramento leaders have failed to see the link between the two. “We need roads and affordable housing,” Schwarzenegger told lawmakers. “The median price of a home in California is $460,000. That's too much. A home of your own is part of the American dream. I believe in such dreams, so I will proposed legislation that eliminates regulatory and legal hurdles that delay construction and increase the costs of new housing.” On the day the budget was released, Business, Transportation and Housing Secretary Sunne McPeak and Housing and Community Development (HCD) Director Lucy Dunn conducted a conference call with a number of housing lobbyists and stakeholders. However, McPeak and Dunn declined to hang specific details on the governor's promise besides saying that California Environmental Quality Act (CEQA) reform would be part of the housing package. In late January, an HCD spokeswoman confirmed that details were still being finalized. A number of Capitol insiders who are typically part of the housing policy debate said they have heard little from the administration, and the anxiety level appears to be rising in Sacramento. “It sounds like everybody is going in their own direction,” said DeAnn Baker, a housing and transportation lobbyist for the California State Association of Counties. “People keep saying we have a housing crisis. But we not only have a housing crisis, we have a transportation crisis, we have an infrastructure investment crisis,” Baker said. “Just don't go out and tell us to zone for housing without any understanding of what it takes to make housing happen.” Christine Minnehan, a housing lobbyist for the Western Center on Law and Poverty, noted that Schwarzenegger spoke only to home ownership, even though 45% of the state's residents are renters, many of whom spend more than half of their income for housing. For more than six months, McPeak has been talking about a homeownership initiative, Minnehan said, “But until you see words on paper, what do you say? We have nothing to respond to.” “I'm not seeing anything that helps people who are really over the edge,” Minnehan added. “I don't hear anything about people who are paying that much of their income for housing and will never, ever buy a house.” In fact, the budget proposes a 70% reduction in a tax relief program for low-income seniors and disabled renters and homeowners, she noted. Outside of transportation and housing issues, the governor's budget includes a major reduction in spending on the Cal-Fed Bay Delta project. That reduction was not a surprise, and Cal-Fed officials have already started leaning more on farmers, water districts and the federal government for funding. Ongoing natural resource-related spending would remain roughly the same, although capital investment would shrink dramatically because of a reduction in available bond money. Of course, no one knows for certain how much of the budget proposal will survive. If the California Teachers Association and education supporters wage full-scale war, the administration and lawmakers may take another look at city and county revenues. “This budget is ambitious,” the CRA's Shirey said. “It's not going to be easy to get passed.” The Legislative Analyst's Office (LAO) suggested that it should not be passed. The LAO found that Schwarzenegger's proposal to give the governor the authority to make across-the-board, mid-year budget cuts made little sense. The LAO also questioned a provision that would prohibit future education spending reductions that violate Proposition 98 guarantees. “ he administration suggests that a key problem is that state spending is on autopilot,” wrote Brad Williams, the LAO's director of fiscal forecasting and budget overview. “If the Legislature believes that this is the case, the solution would not be placing more spending on cruise control - as the administration is proposing for Proposition 98 and other areas of the budget. The solution would be to eliminate these types of provisions that limit the Legislature's and governor's authority to make annual budgetary decisions.” Contacts: John Shirey, California Redevelopment Association, (916) 448-8760. DeAnn Baker, California State Association of Counties, (916) 327-7500. Christine Minnehan, Western Center on Law and Poverty, (916) 442-0753. Governor's budget: www.govbud.dof.ca.gov . Legislative Analyst's office budget report: www.lao.ca.gov/2005/budget_overview/2005-06_budget_overview.htm . California Transportation Commission annual report: www.cate.ca.gov .

As two recent economic efforts illustrate, some job-creating projects require large public subsidies, and others do not. The public agencies running a former military base in San Bernardino and a reserve base in Moreno Valley waged a campaign involving millions of dollars in public subsidies in an effort to attract a DHL cargo sorting and shipping hub. March Air Reserve Base in Moreno Valley won the competition in December. Meanwhile, the City of Emeryville will see a major expansion of Pixar Animation Studios' two-year-old campus with no direct public financial involvement at all. Pixar appears to have struck a video gold mine with animated movies such as “Toy Story,” “Finding Nemo,” and “The Incredibles.” The company completed a 215,000-square-foot headquarters in Emeryville in 2002, and had planned to add another 200,000 square feet on the 16-acre campus at some point. But the company found it needed to accommodate faster growth, so it asked to modify a development agreement with the city. In May 2004, the City Council approved the changes, which permit Pixar to add 533,000 square feet in three buildings, plus a six-level parking garage, on a campus totaling 21 acres. The growth would occur in three phases over as long as 18 years. With the facility expansion, Pixar would grow from about 700 workers to roughly 2,000. Project opponents forced a referendum on the development agreement, general plan amendment, bicycle plan amendment and rezoning for the project. But in last November's election, more than 70% of voters backed the project. During the last decade, Emeryville has transformed itself from a rusty manufacturing town into a modern commerce center largely through the use of redevelopment, plowing millions of dollars into infrastructure and environmental remediation (see Deals, October 1998). So what did it take to lure Steve Jobs's movie studio from nearby Point Richmond - and to keep the studio growing in Emeryville? Not that much. “It wasn't like they needed financial assistance,” said Patrick O'Keeffe, Emeryville's director of economic development and housing. “They really only needed entitlement assistance. We just needed to make it happen.” The Pixar site had been a Del Monte cannery. During the 1990s, the city signed a development agreement with Kaiser Permanente for a new hospital on the site, but the deal fell apart. When Pixar showed interest, the city facilitated the deal between the movie studio and Del Monte, which parted with the land inexpensively, O'Keeffe said. The city and Pixar signed a development agreement in 1998. The proposed expansion proved more involved. The most controversial aspect was the city's agreement to sell an undeveloped right-of-way to accommodate the expansion. Pixar agreed to relocate the bike path planned for right-of-way with a 40-foot-wide bicycle/pedestrian path and linear park along the eastern boundary of the campus. Also, because Pixar purchased a site where a redevelopment agency-subsidized housing project was planned, Pixar paid the $860,000 subsidy back to the city. In fact, Pixar is paying a great deal to public agencies, including development impact and school fees of about $2.5 million and a $1.5 million “capital improvement and services fee” in three installments. Once Pixar's campus is complete, the city expects to receive about $3 million a year in revenue, largely in the form of redevelopment property tax increment, according to O'Keeffe. During public hearings and the referendum campaign, project opponents complained that the city should get more concessions from Pixar. They suggested that because Pixar had already invested tens of millions of dollars in the first phase of the Emeryville campus, Pixar could not leave. Opponents sought additional Pixar funds for traffic mitigation, affordable housing, child care facilities and job training. The $1.5 million capital improvement and services fee can go toward those items, O'Keeffe said. Pixar offers just the sort of jobs most communities covet: high-paying, tech-oriented and nonpolluting. So far, there has not been much spin-off, although a small computer training school has opened in Emeryville, and it is growing quickly, O'Keeffe said. While Emeryville paid virtually nothing for hundreds of highly desirable jobs, the scene in the housing-rich Inland Empire is different. German cargo company DHL chose March Air Reserve Base for a new cargo hub. March beat out airports in San Bernardino and Ontario for the DHL hub, which will initially employ about 250 people. March's victory did not come cheaply, though. Under the deal approved in mid-December, the March Joint Powers Authority will issue up to $35 million in bonds to fund construction of a 380,000-square-foot cargo facility for DHL. March GlobalPort, the airport's private developer, will lease the facility to DHL for about 6 cents per square foot, which is about 10% of the market rate. Additionally, March will waive landing fees for the first six flights a day for three years, and reduce fuel loading fees for three years. DHL said it initially plans to have about eight flights and 18 truck deliveries daily at the facility. Although Ontario International Airport expressed interest, Ontario already has a UPS hub, so the fight for DHL was largely seen as one between San Bernardino International Airport and March. Both communities lost thousands of jobs during the base closures of the 1990s. San Bernardino (the former Norton Air Force Base) offered significant incentives. But San Bernardino could not match March's reduced airport operations cost. Because DHL would be the only user of San Bernardino's airport facilities, which are idle, the cargo company would have to pay all airport infrastructure maintenance costs. Because March still serves as a military reserve base, the federal government will share the cost of running the airport. Officials at both San Bernardino and March see the DHL hub not only as an employment center, but as a magnet to attract other businesses to the immediate area. However, residents of Riverside's Orangecrest area, which is about two miles from March, filed a lawsuit in November over the cargo hub project. The project opponents contend that the environmental impact report did not adequately analyze impacts on noise, air pollution and water supplies. They also complain that the deal with DHL violates a nighttime flight curfew. Furthermore, they say the incentives provided to DHL amount to a federal subsidy of a private company. DHL, which purchased Airborne Express last year, has only about 6% of the $50 billion parcel shipping market in the U.S. But DHL has announced a $1.2 billion expansion, and has already chosen to place sorting hubs in Phoenix, Salt Lake City, Denver, Baton Rouge, Memphis, Minneapolis and Erie, Pennsylvania.

An appellate court has overturned separate environmental impact reports and project approvals for two Bakersfield shopping centers with Wal-Mart supercenters as anchors. The court ruled that the city must address the potential for the projects to cause urban decay, consider the combined impacts of the two shopping centers, and correlate the projects' air quality impacts to effects on human respiratory health. The published opinion - the first regarding a Wal-Mart supercenter - appears to be a home run for Wal-Mart opponents, who are making similar arguments in numerous locations. Attorney Steven Herum, who represented a group of project opponents called Bakersfield Citizens for Local Control, said the court “correctly identifies the fact that Wal-Mart supercenters have unique impacts and that the EIR is going to have to reflect this.” Attorney Stephen Kostka, author of numerous California Environmental Quality Act practice treatises, called the decision an “atomic bomb.” The Fifth District demanded that an EIR contain an analysis of something that most analysts would call speculative, namely the impact that a Wal-Mart supercenter could have on specific other retailers and business locations, said Kostka, of Bingham McCutchen. How, he asked, do you mitigate the impact of lower prices? Kostka, who is not involved in the litigation, also questioned how an EIR could correlate a tiny increase in cumulative air pollution to ultimate impacts on human health, as the court required. Bakersfield City Attorney Virginia Gennaro said city officials were still evaluating the ruling and deciding how to proceed. “Here in the City of Bakersfield, we don't think urban decay will be a problem,” Gennaro commented. “We are growing at such a rate that it isn't a concern.” The fact that both shopping centers are partially built complicates the situation. At one site, a Lowe's Home Improvement Warehouse is complete and in business, and at the other location a Kohl's department store has opened. At both locations, Wal-Mart supercenters sit partially complete. A trial court judge earlier halted further construction of the Wal-Mart stores. Four days after the Fifth District issued its ruling, project opponents asked the Fifth District to halt all construction at the two shopping centers until litigation is resolved. Nearly three years ago, developer Panama 99 Properties LLC filed an application for a 370,000-square-foot shopping center on Panama Lane in southwestern Bakersfield. At the time, the empty site was zoned for low-density residential uses and open space. The new center would feature a Wal-Mart supercenter, Lowe's and a gas station. The proposed supercenter would replace an existing, smaller Wal-Mart 1.4 miles away. One week later, developer Castle & Cooke Commercial-CA (C&C) filed an application for a 700,000-square-foot shopping center called Gosford Village. Zoned for service industrial uses, the site was 3.6 miles away from the Panama Lane project site. Although the Gosford Village EIR said no tenants had been identified, it was common knowledge the project would have a supercenter, Kohl's, a Sam's Club and numerous other stores and restaurants. Two separate EIRs were prepared. The Panama Lane EIR identified significant and unavoidable impacts on air quality and noise. The Gosford Village EIR found significant and unavoidable impacts on air quality, both individually and cumulatively. The Bakersfield City Council considered both projects on February 12, 2003. The council certified both EIRs and adopted statements of overriding considerations, with all actions occurring under the City Council's consent calendar. Later in the meeting, the council conducted a public hearing to approve general plan amendments and rezonings for the projects. Bakersfield Citizens for Local Control (BCLC), a group associated with grocery store labor unions, filed separate lawsuits over the EIRs. In January 2004, Superior Court Judge Kenneth Twisselman ruled the documents inadequate because they did not study the question of whether the two shopping centers, individually or cumulatively, could trigger a series of events leading to urban decay. However, Judge Twisselman left the project entitlements intact and allowed construction to proceed - except for the Wal-Mart supercenters, construction of which Twisselman halted. The Wal-Mart opponents appealed parts of the decisions in both cases; C&C appealed part of the decision regarding Gosford Village. The Fifth District combined the appeals and then ruled squarely for BCDC. Wal-Mart opponents and regulatory bodies across the country have pressed the urban decay argument. The BCDC presented a study by San Francisco State University economics Professor C. Daniel Vencill that identified 29 businesses, many of them grocery stores, that were at risk of closing if the projects went forward. Those closures could lead to long-term or permanent vacancies, building deterioration and “then culminate in physical effects associated with blight-light conditions,” Vencill concluded. The opponents also submitted studies and news reports from California and nationally about the effects on a market that is saturated with supersized retailers. The Fifth District ruled that the environmental studies' lack of a discussion regarding potential urban/suburban decay violated CEQA. “ he economic and social effects of proposed projects are outside CEQA's purview,” Justice Timothy Buckley wrote for the court. “Yet, if the forecasted economic or social effects of a proposed project directly or indirectly will lead to adverse physical changes in the environment, then CEQA requires disclosure and analysis of these resulting physical impacts.” “ hen there is evidence suggesting that the economic and social effects caused by the proposed shopping center ultimately could result in urban decay or deterioration, then the lead agency is obligated to assess this indirect impact,” Buckley continued. “Many factors are relevant, including the size of the project, the type of retailers and their market areas, and the proximity of other retail shopping opportunities. The lead agency cannot divest itself of its analytical and informational obligations by summarily dismissing the possibility of urban decay or deterioration as a 'social or economic effect' of the project.” The court said the record contained “a great deal of evidence” regarding potential urban decay. “This evidence cannot be cavalierly dismissed as 'hit pieces' designed to disparage a specific corporation. Studies discussing the experiences of other communities constitute important anecdotal evidence about the way the proposed shopping centers could serve as a catalyst for urban deterioration and decay in the city. The Vencill report is extremely significant and it strongly supports BCLC's position that CEQA requires analysis of urban decay,” the court ruled. Furthermore, the Fifth District said the city must address the unique nature of giant stores that operate 24 hours a day. “ o simply state as did the Gosford EIR that 'no stores have been identified' without disclosing the type of retailers envisioned for the proposed project is not only misleading and inaccurate, but it hints at mendacity,” Buckley wrote. The court also found that the city should not have considered the project EIRs in isolation. “There is not merit to the position of city and developers that cumulative impacts analysis does not require consideration of both shopping centers because, in each case, the other shopping center is outside the radius of the 'project area' as defined in the EIRs,” Buckley wrote. “Simply put, selection of 'appropriate' geographic areas that just happen to narrowly miss the other large proposed shopping center in every category of impacts despite their overlapping market areas and shared roadways does not constitute the good faith disclosure and analysis that is required by CEQA.” Regarding air quality, the court found the EIRs did not acknowledge “the well-known connection between reduction in air quality and increases in specific respiratory conditions and illnesses. … The health impacts resulting from the adverse air quality impacts must be identified and analyzed in the new EIRs.” The court ordered Bakersfield to void certification of the EIRs, the findings of overriding consideration and project approvals. After completing new EIRs, the city “may require completed portions of the projects to be changed or removed,” the court noted. Kostka, of Bingham McCutchen, said the decision is worrisome because the court relied heavily on BCLC testimony presented at the City Council public hearing. “It not only allows late hits, it rewards them,” Kostka said. “What the case says is that someone can wait until the very, very end of the process, and then pile information and reports on the agency.” Herum, however, denied that was opponents' strategy. “That was the first and only time the City Council ever looked at the project,” Herum said. “We made the same arguments that we had been making since the scoping session.” And the Fifth District did not look favorably on the city's CEQA process, saying the city “improperly segmented environmental review from project approval in contravention of Guidelines § 15202, subdivision (b).” The public may raise new environmental objections until the close of a public hearing on project approval, the court determined. The Case: , No. F044943, 04 C.D.O.S. 10918, 2004 DJDAR 14768. Filed December 13, 2004. The Lawyers: For BCLC: Steven Herum, Herum, Crabtree & Brown, (209) 472-7700. For the city: Virginia Gennaro, city attorney, (661) 326-3721. For Castle & Cooke California: Craig Beardsley, Jones & Beardsley, (661) 664-2900. For Panama 99 Properties: John Nolan, Gresham, Savage, Nolan & Tilden, (909) 684-2171.

A state appellate court has upheld the San Diego Regional Water Quality Control Board's comprehensive regulations regarding municipal storm drainage discharges. The ruling is the first one published regarding the multiple challenges that the building industry and cities have filed against regional boards' heightened restrictions on urban runoff. In the San Diego County case, the Building Industry Association (BIA) of San Diego County argued that the regulations went beyond the scope permissible under federal law. A unanimous three-judge panel of the Fourth District Court of Appeal, however, found nothing in federal law to preclude the regulations. The issue of urban runoff has become a critical one for many planners and developers because compliance with the latest regulations often requires new development projects, even small ones, to at least slow down and filter their runoff. This is most often done with the construction of grassy drainage swales, detention ponds or infiltration basins (see , October 2002, August 2001, March 2000). At the behest of the State Water Resources Control Board, regional water quality boards began adopting regulations about five years ago. Ever since, the development community and numerous cities that must enforce the standards have contested the regional water board decisions. The Fourth District's ruling frustrated the development community. “We believe very strongly that the Court of Appeal has misconstrued both Congress's legislative intent and the relevant judicial precedent in construing the provisions dealing with municipal stormwater discharge,” David Mulliken, the BIA's attorney in the San Diego case, told the . However, with litigation and administrative appeals regarding similar water quality regulations in other regions ongoing, the Fourth District's opinion appears to bolster the regulators' case. In February 2001, the San Diego board approved new waste discharge requirements governing municipal storm sewers. The requirements applied to all 18 incorporated cities in San Diego County, the San Diego Unified Port District and the county. The new regulations prohibit municipalities from discharging pollutants if those pollutants would cause the receiving water body to violate applicable water quality standards. The regulations also demand that cities, the county and port district require businesses and residents to adopt “best management practices” for slowing stormwater and retaining or absorbing pollutants. The practices include structural controls that are part of new developments, as well as educational programs. Studies have found that urban runoff is a larger source of pollution than wastewater treatment plants and industrial outlets, and is largely responsible for pollution that has plagued some coastal areas. The San Diego County BIA appealed the regional board's decision to the State Water Resources Control Board. With some minor revisions, the state board upheld the regional board's regulations. So the BIA sued, arguing that the regulations were impractical under federal law and unreasonable under state law. San Diego County Superior Court Judge Wayne Peterson ruled against the builders. On appeal, the Fourth District upheld the lower court's decision. On appeal, the BIA only pressed its contention that the regulations go too far under federal law. The builders argued that under federal law, the “maximum extent practicable” standard - and not the higher “best management practices” standard - is the only one that state regulators my apply. The Fourth District disagreed. The court reviewed at length the history of the federal Clean Water Act and later revisions contained in the Water Quality Act of 1987. The statutes and case law make clear that the Environmental Protection Agency - and its delegates, such as the state water board - must regulate storm sewers as “point sources” of pollution, according to the court. The 1987 legislation stated, in part, that permits for discharges from municipal storm sewers “shall require controls to reduce the discharge of pollutants to the maximum extent practicable, including management practices, control techniques and system, design and engineering methods, and such other provisions as the administrator or the state determines appropriate for the control of such pollutants.” (33 U.S. § 1342(p)(3)(B)(iii).) According to the Fourth District, “Congress did not intend to substantively bar the EPA/state agency from imposing a more stringent water quality standard if the agency, based on its expertise and technical factual information and after the required administrative hearing procedure, found this standard to be a necessary and workable enforcement mechanism to achieving the goals of the Clean Water Act.” Citing , (9th Cir. 1999) 191 F.3d 1159, the court ruled that the statute gives “the EPA discretion to determine what pollution controls are appropriate.” The court also rejected the BIA's contention that standards greater than “maximum extent practicable” were, by definition, impossible to meet. The maximum extent practicable standard is less stringent “than another Clean Water Act standard that relies on available technologies.” Thus, standards beyond the maximum extent practicable are not necessarily impossible to achieve, the court held. “ he record does not support that any required control is, or will be, impossible to implement,” the court ruled. In the unpublished portion of its decision, the Fourth Distinct ruled that the storm drain regulations were statutorily exempt from California Environmental Quality Act review. The Case: , No. D042385, 04 C.D.O.S. 10694, 2004 DJDAR 14492. Filed December 7, 2004. The Lawyers: For the BIA: David Mulliken, Latham & Watkins, (619) 236-1234. For the state: Mary Hackenbracht, assistant attorney general, (510) 622-2140.

Everything about the federal government's newest endangered species recovery plan is big. It took nearly 10 years to complete. It addresses 33 types of plants and animals scattered across the length and breadth of California. It's 593 pages long. But the biggest number associated with the plan is the price tag it places on actions necessary to eliminate threats to the species' continued survival: potentially more than $2 billion, a figure certain to raise eyebrows among even the staunchest supporters of habitat conservation, let alone those who believe the federal Endangered Species Act (ESA) to be an excessively costly impediment to business. “Clearly the costs are staggering,” Brian Kennedy, a spokesman for the House Resources Committee, told the . “This will be yet another case study in the need to reform the Endangered Species Act.” In a way, however, the draft recovery plan issued November 18 by the U.S. Fish and Wildlife Service (USFWS) is precisely the kind of flexible and comprehensive blueprint for conservation that critics of the ESA have been demanding for years. With its new approach, the plan could provide a test of whether those who have been calling for ESA “reform” really mean it, or whether demands for reform have been a smokescreen for more radical change. It remains to be seen whether the recovery plan will mollify critics at either end of the political spectrum. The actions it describes, although intended to avoid the acrimony and conflict associated with typical ESA enforcement, have apparently not impressed the crowd of ESA reformers in Congress, and the voluntary nature of the recovery strategy will not be popular with the environmental community, which has often criticized similar habitat conservation plans for favoring landowners at the expense of plants and wildlife. For more than a decade, critics of the ESA have lamented the way the law focuses attention on one species at a time, resulting in piecemeal conservation strategies that can subject landowners to a bewildering tangle of restrictions and ignore the needs of other species found in the same habitat. Critics have also carped about the law's encouragement of a top-down regulatory approach that focuses on punishing those who violate the ESA rather than rewarding those who voluntarily comply with it. The draft plan appears to address both those claims. It focuses on not one but 20 federally listed species of plants and animals, as well as 13 “species of concern,” all of them associated with one of the rarest habitat types on the West Coast: vernal pools, small, ephemeral wetlands found in scattered foothill and valley locations from the Mexican border to southern Oregon. And the plan outlines a strategy for voluntary cooperation with private landowners, rather than simply detailing a set of restrictions on their actions. None of the species are household names. The federally endangered plants covered by the plan are Loch Lomond button-celery, Contra Costa goldfields, Butte County meadowfoam, few-flowered navarretia, many-flowered navarretia, hairy Orcutt grass, Sacramento Orcutt grass, Lake County stonecrop, Greene's tuctoria, and Solano grass. The federally threatened plants are fleshy owl's clover, Hoover 's spurge, Colusa grass, San Joaquin Valley Orcutt grass, and slender Orcutt grass. The three federally endangered animals are the Conservancy fairy shrimp, longhorn fairy shrimp and the vernal pool tadpole shrimp. The two federally threatened animals are vernal pool fairy shrimp and delta green ground beetle. The 13 species of concern - meaning they are considered rare but not in danger of extinction - include 10 plants: Ferris' milk vetch, alkali milk vetch, persistent-fruited saltscale, spiny-sepaled button-celery, Boggs Lake hedge-hyssop, Ahart's dwarf rush, legenere, little mouse tail, pincushion navarretia, and bearded popcorn flower. The animals of concern are the mid-valley fairy shrimp, California linderiella, and western spadefoot toad. All the plants and animals identified in the plan have extremely limited ranges, some of them being found in only a handful of locations. Vernal pools are formed when winter rains collect in shallow, impermeable basins. The pools vanish during the dry season. For a brief time, they come riotously to life, supporting a profusion of wildflowers and small creatures that have managed to adapt to the wet-dry cycle. Fairy shrimp, for example, hatch, mature and breed in a matter of a few weeks, laying their eggs in the drying mud to await the onset of the next rainy season. Vernal pools are thought to have originally occurred on 22 million acres in California and Oregon, but 75% of that habitat has been lost to urbanization and agricultural conversion. The relatively few vernal pools that remain often are threatened by poorly managed grazing, development plans, invasive weeds, or changes in the surrounding land use that can disrupt their delicate hydrology. The draft recovery plan identifies “core areas” - those containing particularly important habitat, or one or more species - encompassing 1.5 million acres. Those areas are classed as Priority 1, 2 or 3, with most of the recovery strategies targeting the Priority 1 areas, which cover about 683,000 acres. Those are the areas with the greatest biodiversity or the highest concentration of vernal pools. Much of that acreage is in the Central Valley and Sierra foothills, but patches are found in many other areas, including San Diego, Lake, Napa, Mendocino, Riverside, Santa Barbara and Monterey counties. The attention-grabbing recovery cost figures are based on a strategy of purchasing land to protect the core areas, which the service estimates would cost nearly $2.1 billion for the entire 1.5 million acres. For only the Priority 1 areas, the cost is estimated at $773 million. In practice, however, it is unlikely the land will be purchased outright. The plan describes an entirely voluntary process by which landowners will enter into habitat conservation agreements with USFWS, or sell or dedicate conservation easements. Those strategies would drastically lower the cost of implementing the recovery plan. The plan recommends that regional working groups be established, the membership to include local farmers, ranchers, developers and other community members. These groups would develop participation plans, coordinate education an outreach efforts, help develop economic incentives for conservation and recovery, and oversee the recovery process. “Partnerships with private landowners are the key to successful recovery of vernal pool species,” said Steve Thompson, California-Oregon regional manager for USFWS. “This plan will help us direct federal funding to landowners for protection and restoration of these species, and enable landowners to protect their own interests with conservation agreements.” After a 120-day public comment period, the service will begin work on a final version of the plan, expected to be completed late this year. Contacts: Fish and Wildlife Service: 916-414-6572 Draft vernal pool recovery plan: http://sacramento.fws.gov

A federal injunction that halted the City of Stockton's code enforcement crackdown on dilapidated residential hotels has been upheld by the Ninth U.S. Circuit Court of Appeals. The Ninth Circuit modified the injunction but still determined that the plaintiffs - six hotel residents and a nonprofit advocacy group - demonstrated a strong likelihood that they would win a lawsuit alleging that the city had violated the federal Housing and Community Development Act. The Ninth Circuit ruled that city had to provide federally prescribed relocation assistance and replacement housing for people evicted from the hotels. The federal requirements came into play because Stockton used Community Development Block Grant funds for the code enforcement activity. In 2001, the city began a new project to enforce health, building and safety regulations in downtown Stockton. The city inspected about 30 multi-family residential buildings, primarily single-occupancy residential hotels. Officials closed nine properties, including six that were vacated on an emergency basis. Inspectors found bat infestations, fire code violations, dangerous carbon monoxide emissions and other substandard conditions. The city shipped some of the evicted residents to a farm labor camp south of town, but that camp soon closed. Six hotel residents and Stockton Metro Ministry (now known as Interfaith Council of San Joaquin) sued the city, alleging the city violated a variety of state and federal housing and redevelopment laws. In February 2002, U.S. District Judge Lawrence Karlton issued a preliminary injunction that prohibited the city from vacating, demolishing or converting downtown residential hotels until the city adopted and implemented an anti-displacement and relocation plan. The injunction also required the city to provide relocation assistance and replacement housing to everyone displaced by the code enforcement activities. Judge Karlton later amended the injunction to allow the city to close buildings that pose “an immediate and grave danger to the health and safety of occupants or the public.” The city appealed the injunction to the Ninth Circuit. The city argued, in part, that the applicable provisions of the Housing and Community Development Act (42 U.S. § 5304(d)) did not confer individual rights upon a class a people. In other words, the plaintiffs in this case did not have the right use the Federal Civil Rights Act to sue, according to the city. The Ninth Circuit disagreed. “Section 104(k) of the act clearly mandates … that 'each grantee shall provide for reasonable benefits to any person involuntarily and permanently displaced as a result of the use of assistance received under this chapter to acquire or substantially rehabilitate property,'” the court ruled. This section “requires that benefits be provided to particular persons displaced by federally funded redevelopment activities. This language evinces a clear intent to create a federal right.” Section 104(d) spells out those benefits: reimbursement for actual and reasonable moving expenses and interim living costs, and relocation to “comparable replacement housing.” However, the Ninth Circuit found that other provisions in § 104(d) do not convey individual rights. Those provisions require a housing plan that includes one-for-one replacement of all occupied and vacant occupiable low- and moderate-income units with other units having 10-year affordability protection. The Ninth Circuit also considered the lower court's ruling regarding the plaintiffs' likelihood of success on the merits of their litigation, and a balancing of the hardships of an injunction. The likelihood of success is necessary for an injunction, and it exists here, the Ninth Circuit confirmed. Section 104(k) “on its face” requires the provision of certain benefits where displacement occurs as a result of the use of block grant funds “to acquire or substantially rehabilitate property,” the Ninth Circuit noted. In this case, the district court found that Stockton used block grant funding for code enforcement that led to the displacement. The lower court also determined that the city's redevelopment activities - which were partially funded by block grants - amounted to a single undertaking. The Ninth Circuit refused to overturn the lower court's determinations, noting that the city moved to acquire two hotels through eminent domain after closing them for code violations. As for hardships, the court wrote, “ t is a far more severe hardship for someone to be displaced from his or her home without assistance and without the certainty of knowing where to move.” The Ninth Circuit concluded by narrowing the injunction “to protect only those individual rights that plaintiffs are permitted to enforce” and eliminating the requirement for a replacement housing plan. The lawsuit is scheduled for trial at the U.S. District Court in Sacramento beginning in September. The Case: , No. 02-16155, 04 C.D.O.S. 10634, 2004 DJDAR 14439. Filed December 6, 2004. The Lawyers: For Price: Stephanie Haffner, California Rural Legal Assistance, (209) 946-0605. For the city: Lee Rosenthal, Goldfarb & Lipman, (510) 836-6336.

Behold the common skateboard, a machine that can give new life to parks, especially those areas that previously seemed unusable. Little more than a plank of wooden laminate, this machine is shaped like a surfboard. Once brightly colored, it has been scuffed by hard use almost beyond recognition. On its bottom surface are two pair of wheels, fore and aft, that torque and bend and snap back into position. On the top surface is a youth of 12 or 13 summers, maybe wearing a helmet or maybe not, but likely wearing some form of elbow and knee protection (even kids learn from experience, sometimes) who can make a weird music out of the sound of the wheels leaping off the edge of a ramp (KLIK-likk!!) or the sound of those same wheels landing on concrete (Kip-PLOKK!!) or a surf-like maneuver where the wheels sidle up the edge of an incline and make a hair-pin turn like a surfer. (GAHZZZ-zook!!). Nobody needs reminding that the skateboard is ubiquitous - it remains the fastest growing sport in America - and skate parks are no longer novelties in public places. By now, dozens of California cities have built skate parks, even in cases where residents originally protested. What makes skate parks really interesting, from a planning point of view, is the opportunity that skateboarding offers to remake awkward spaces--excess parking, languishing shuffle board courts, the dead zones behind baseball batting fences, detention basins, and all the other oddball spaces in parks that otherwise go empty. In many cases, after the construction of a stake park, these oddball spaces become the most popular and heavily trafficked part of the park. And despite the fears of youth-o-phobes, very little bad behavior goes on in these places, because the kids and young adults who come here regularly are dedicated athletes as fixated on their sport as surfers or downhill skiers. The most interesting aspect of skate parks, from a landscape-design perspective, is their flexibility. There is no standard model, and indeed no two are alike, according to Steve Rose, principal of Purkiss-Rose RSL, a landscape architectural firm based in Fullerton. (With more than 200 built skate parks to their credit, Purkiss-Rose is the acknowledged heavyweight in this field.) Geometrically, skate parks can be long and skinny, or square, or round. The nature of each park is determined somewhat democratically, with local skaters, each of whom have their own preferences, consulting. In some cases, the skate park replicates certain features, like walls or stairs, that boarders enjoy using in their respective neighborhoods. Of course, there are always skaters who complain that courses are not challenging enough. Skate park design follows two different approaches for two different styles of skating. The first, known as “old school,” is about bowls and long glides and the sensation of flowing movement, inspired by surfing. (Skateboarding originated with surfers, according to legend.) Rose also likes to incorporate curved walls reminiscent of empty swimming pools, one of favored venues of pioneering boarders during the early, outlaw phase of the sport; most skate parks, in fact, resemble empty, concrete-lined basins. The second style, called “street,” consists of sheer drop-offs, railings and jump off points, inspired by the high-risk, high-impact style of boarding invented by enthusiasts who perfected their skills in the urban hardscape. In many cases, Rose said he combines elements of both old school and street, such as a smooth, flowing course of bowls and wave-like forms arranged around a group of tough-looking escarpments and ramps for the air-grabbers and grinders. Space for spectators is important, but the seating must look improvised; bleachers are . Observers are often budding athletes or admirers who do not think of themselves as outsiders. They want ring-side seats that let them feel the action. Often, a simple ledge around the skate park is enough. The flexibility of skate parks means that these facilities can be installed just about anywhere. “Start with an under-used area,” said Rose. He cited some examples from his portfolio. In Pomona (Los Angeles County), a neglected area for shuffle board and horse shoes became the basis for a skate park. In Santa Barbara, Rose used some parking spaces, replacing the lost spaces by re-striping the surviving parking area. A steeply sloped area in a park in Moreno Valley that was previously identified as “non-programmable” is now a skateboard venue. In Monrovia (Los Angeles County), adaptive reuse came into play. Starting with an unused armory building and a parking lot, Rose re-purposed the armory as a youth center, while replacing the parking lot with a skate park. The approval process can be tricky. “City officials, especially plan checkers, have to be re-educated,” Rose advised. First, neighbors must be convinced that skaters are not loitering hooligans. As for concerns about noise, Rose says skateboarding is no more noisy than street traffic (about 70 decibels). City officials must be convinced that liability for injury is no greater than any other sport played in parks. (The injury rate in skateboarding is surprisingly low, in contrast to the recent craze for scooters that engulfed emergency rooms with abrasions and knee injuries.) Building and safety departments have to be talked down from imposing ADA access requirements, which Rose contends do not apply for these projects, just as those rules do not apply for tennis courts or swimming pools. The cost of building skate parks, in fact, is roughly akin to that of swimming pools, or about $40 per square foot. The facilities are finished in smooth concrete, and require minimal maintenance. Best of all, skate parks get those insane kids off the streets, so middle-aged men walking home from Trader Joe's are not thrown off balance, falling into the bushes and spilling their paper bags full of Two-Buck Chuck and brie. My advice is to build the darn things so that you can start worrying about the rising popularity of the next urban-outlaw sport: scaling the facades of tall buildings with rock-climbing gear. Talk about an urban design challenge.

A state appellate court has reinstated a lawsuit challenging the environmental impact report for a 6,500-unit project in Madera County. The Fifth District Court of Appeal found that a lower court's dismissal of the lawsuit because of procedural problems was inappropriate. The lawsuit was filed by six Madera County residents over the EIR for the Village of Gateway, a 2,392-acre project west of Highway 41 and north of the San Joaquin River. In March 2002, the Madera County Board of Supervisors voted 3-2 to approve an EIR and general plan amendment for the project. But it was not until October 2002 that the board adopted findings of overriding considerations (the EIR had identified significant, unmitigated impacts), as well as conditions of approval and a mitigation monitoring program. The county also filed a “notice of determination” regarding the environmental documents at that time. In November of that year, the project opponents filed a lawsuit against the county contending that the EIR failed to adequately analyze all of the project's individual and cumulative impacts, and that the EIR contained infeasible and unenforceable mitigation measures. The lawsuit also alleged general plan inconsistency and a violation of the Water Code. The plaintiffs soon began bickering with the county and the real parties in interest - seven developers, landowners and special districts led by Castle & Cooke California, Inc. - over preparation of the administrative record. After going back and forth, the county in April 2003 advised the plaintiffs that preparation of the record would cost $59,127.50 and that the county would file a motion to dismiss the lawsuit unless the plaintiffs deposited that amount with the county within two weeks. The plaintiffs refused to deposit the money and in June submitted an administrative record amounting to 95 documents containing 1,731 pages, or about 4% of the 2,200 documents that the county estimated were part of the record. In July 2003, Madera County Superior Court Judge David Minier dismissed the lawsuit on the grounds that the plaintiffs had failed to request a hearing within 90 days of filing a petition as required by the California Environmental Quality Act (CEQA), and that they had failed to prepare the administrative record within 60 days. Minier said the record that the project opponents did prepare “was merely a token filing.” The project opponents appealed, and a unanimous three-judge panel of the Fifth District overturned the lower court. The Fifth District first dealt with the issue of the hearing request. Under CEQA, a plaintiff has 90 days to request a hearing. The project opponents did file a request, but that request did not set a hearing date. The real parties in interest and the trial court said that the failure to set a hearing date violated the applicable section of CEQA, Public Resources Code § 21167.4. The Fifth District ruled, however, that although a hearing date might have been required prior to a 1994 CEQA amendment, it no longer was. “Instead, the current version of § 21167.4 requires the date for the hearing on the petition's merits to be set by the court in conjunction with setting the briefing schedule,” Justice Betty Dawson wrote for the court. As for the administrative record problems, the Fifth District ruled that terminating the litigation was an overly harsh sanction. The court noted that CEQA, while establishing sanctions in certain situations, does not prescribe any express penalties against petitioners who fail to submit an administrative record within the statutorily established timeframe. Dismissing the lawsuit “erroneously elevates prompt resolution of CEQA litigation above other CEQA purposes and competing policy considerations,” the court held. The court sent the case back to the Superior Court, but not before listing - in an unpublished portion of the opinion - a long series of legal and factual issues for the lower court to consider regarding the contents of the administrative record. The list of issues identified by the court likely means that the fight over the administrative record, let along the actual merits of lawsuit, is far from over. The Case: , No. F044068, 04 C.D.O.S. 9927, 2004 DJDAR 13531. Filed November 3, 2004. Modified November 30 at 2004 DJDAR 14258. The Lawyers: For Leavitt: Patience Milrod, (559) 442-3111. For the county: John L.B. Smith, Baker, Manock & Jensen, (559) 432-5400.

Are the stars aligning on growth policy in Sacramento, for better or worse? It feels a little funny to be writing this story yet again. I have been writing it for 16 years, yet the state growth policy universe has changed little. This time, though, there might be something to it. Over the past month, the Senate's new leader, Don Perata (D-Oakland), has made a lot of noise about growth. He has expressed concern that sprawl and congestion will swallow the state. He has stated that retaining the middle class is his biggest concern. He has combined the Senate's housing and transportation committees - an unprecedented move - and appointed the Senate's leading local government policy wonk, Tom Torlakson (D-Antioch), to chair it. What's more, Perata has mentioned the unmentionable. “The ultimate issue is going to come down to who controls zoning,” he stated in a memo obtained by Associated Press. “Should the state have a right to zone parts of California to maximize housing opportunities and decrease traffic congestion?” Needless to say, this suggestion has not gone down well, either with local officials or local editorialists. Ever since the AP story ran, Perata has been ripped from north to south for even suggesting it. Even though the state theoretically has the power to reclaim zoning - and has done so from time to time, most famously with the Coastal Commission - the idea of local land-use control is so sacrosanct that almost nobody ever puts it on the table for discussion. The last politician to do so was Willie Brown, then the Assembly speaker, during the growth-control battles of 1988. At the time, Brown suggested that maybe cities and counties should be abolished and replaced by regional governments, thus freeing the land use process from parochialism. It was never clear why Brown floated the idea. Was he staking out an extreme position on purpose? Was he tying to create a powerful regional body he could get elected to in case term limits passed? In any event, Brown's idea did not go anywhere. In fact, it probably was responsible for killing the concept of a state growth management law, which was very much in play at the time. (Hmmm. Maybe that was his goal!) Perata's moves might not be important if the Schwarzenegger administration were not moving in the same direction. But Business, Transportation, and Housing Secretary Sunne McPeak has been making the same kind of noise. For the last year, McPeak has been stumping the state trying to put housing on the agenda. She has proposed that housing elements cover 20 years instead of only five. And, like Perata, she has drawn housing and transportation policy closer together. With both Caltrans and the Department of Housing and Community Development in her agency, she has used Caltrans's deep pockets to help pay for housing policy. Currently, the agency has contracted with UC Berkeley's Institute for Urban and Regional Development to do a statewide infill housing capacity analysis - and the project is overseen by a Caltrans employee. (Full disclosure: Prior to Arnold Schwarzenegger's election, my firm, Solimar Research Group, received a contract to work on a different Caltrans grant dealing with infill housing.) So, let's add this up: The head of the Senate - a former Alameda County supervisor - is making noises about having the state play a more aggressive role in land use decisions about housing. He has created a committee that deals with housing and transportation and put a former Contra Costa County Supervisor (Torlakson) in charge of that committee. Meanwhile, the Business, Transportation, and Housing secretary appears to have an aggressive housing agenda, and she's also a former CoCo County Supervisor. (In fact, she and Torlakson served together on that board for 13 years.) This looks to me like some stars falling into place. But for both the Legislature and the administration, the basic issue is the same: How do you align housing and transportation policy? This is just about the most difficult land use issue you can face. Everybody agrees that transportation policy is mostly a state responsibility. In fact, several of the newspaper editorials that took Perata to task about housing acknowledged this, and noted that the state has significant influence over growth patterns for that reason. At the same time, housing remains a treasured local prerogative. Local resistance to the state's role in housing elements ranges from strong to fanatical. Anybody who even gently suggests that there are broader interests at stake in housing gets skewered, as Perata did. Yet the one lesson that has emerged from the whole greenfield/infill debate over the last decade is that housing is part of the solution to the transportation problem - especially in a state where housing is extremely expensive and traffic is extremely congested. That's why Caltrans is interested in infill housing. So Perata, McPeak, and Torlakson are all angling toward the same thing - how to nudge housing and transportation policy closer together in an environment where a strong-arm move on housing will cause a near-revolution among local governments. And, as is usually the case these days in California, the answer would appear to boil down to the question of whether this issue is on one guy's short list. The guy, of course, is Gov. Arnold Schwarzenegger. Since his election a year ago, Schwarzenegger has posted a good record of getting something done once it gets on his short list - the recovery bond, worker's comp changes, killing Proposition 72. It is also worth noting that most of the items on the short list have been things that business has been clamoring for and Democrats have opposed. It is pretty clear that, through her strong rhetoric and relentless stumping around the state, McPeak's goal has been to get housing onto Schwarzenegger's short list. Now she has an important Democratic ally in the Legislature, who is casting housing as an issue of retaining the middle class. Furthermore, even though the Legislature is undeniably dominated by liberal Democrats, it is clear that the environmentalists who have helped block housing policy changes are on the way out. They are gradually being replaced by a new generation of politicians - many of them Latino - who have an agenda of upward mobility: jobs, schools, health insurance … and maybe housing. From a Sacramento inside-baseball perspective, it is difficult to see where this goes. In Sacramento, this looks mostly like a continuation of the fight over housing elements. The interest groups have been locked in a stalemate over housing elements since the Deukmejian administration, and one of those interest groups - local governments - is feeling empowered these days after an 84% “yes” vote on the revenue protections of Proposition 1A. But the one thing we have learned during the last year is that inside baseball is not what it used to be in Sacramento. The emerging stars in the Legislature have a somewhat different agenda, and the big star in the governor's office can change the shape of the galaxy - if it's on his short list. So maybe the stars will align this time.

For a variety of reasons, ranging from real estate prices to market demand to planning trends, New Urbanist projects are becoming more common in California. But the execution of these projects - the on-the-ground-reality - is spotty. Translating the New Urbanist planning vision into real developments appears to take an extraordinary attention to detail, and a good measure of faith. The execution problems may not be inherent in the design principles of New Urbanism. Rather, they may lie with expectations. Many people, whether they consider themselves urbanists or not, often expect more of a New Urbanist project than they do of a run-of-the-mill suburban housing tract or power center. This might explain why committed New Urbanists complain - without naming names publicly - that even some of the most vaunted New Urbanist projects in California are disappointing. Sure, the projects might have houses with front porches, alleyways, central public places and other trademarks of a New Urbanist project. But the projects still feel suburban. Myriad things can go “wrong.” Many corporate builders and contractors, even good ones, do not understand the intricacies of New Urbanist architecture. Tight budgets can reduce or eliminate crucial components. Zoning codes and public works standards can get in the way. And cities' resolve to encourage New Urbanist projects can crumble under political and market pressures. And then there is the faux urbanism found in so many “lifestyle centers” and “town centers” (or “towne centres”). “It's developer schlock,” Daniel Solomon, a San Francisco architect and co-founder of the Congress for the New Urbanism, said of lifestyle centers. That schlock sets back the movement for real urbanism, he said. “It perpetuates a kind of stigma in the design community when New Urbanism gets associated with kitsch and developer schlock.” “Unfortunately,” added Sacramento architect and developer David Mogavero, “New Urbanism can be a broad umbrella, depending on who is defining it.” Yet, there are architects, developers, planners and policy-makers trying to get it right. “Obsessed With Details” Chico, in the Central Valley 90 miles north of Sacramento, might seem like an unlikely place for New Urbanist development, given that the city is surrounded by miles of potential greenfield development sites. For decades, development in the city and the surrounding unincorporated area has followed the suburban model. However, the city has a thriving downtown next to the third-oldest campus in the California State University system, and old neighborhoods with their dense tree canopies and stately homes are some of the most popular in town. Chico is also the home of New Urban Builders, which is in the midst of developing the Doe Mill Neighborhood on the city's southeast side. When complete, Doe Mill will have about 175 units, plus about 75 “carriage units” above garages, on 20 acres. Although Doe Mill is only a residential development thus far, it has a classic appearance and many features valued by New Urbanists: a wide variety of housing types, ranging from apartments to 2,000-square-foot houses with second-story studios; narrow streets lined by fast-growing trees; good street connectivity; alley-loaded garages; unprogrammed and more formal public spaces; and a decided lack of front yards and setbacks. The first of its kind in Chico, the project and has drawn raves and made New Urban Builders a hot commodity in the region. Doe Mill “works,” in part because New Urban Builders controls every aspect: planning, entitlement, architecture, development and individual unit construction. “There are not enough builders out there who are building this product type,” said New Urban Builders President Tom DiGiovanni, who conceded he is “obsessed with details.” For example, house windows and porches that are only a few feet from the sidewalk all have vertical separation to provide a measure of privacy and “space.” “The land planning and development is very tightly woven with the building type. We can, in fact, control it from the plans to the lots to the built fabric,” DiGiovanni said. New Urban Builders found cooperative city officials. The city processed Doe Mill as a planned development, allowing the city to write project-specific standards for things like street width, setbacks, parking and density, said Senior Planner Tom Hayes. More recently, the city approved a second New Urban Builders project and is talking to the company about a third, much larger mixed-use project next to Doe Mill. “Clearly, it would be easier if we had a traditional neighborhood ordinance, or a New Urbanist ordinance. But we've had good success with the planned development approach,” Hayes. Sacramento's Mogavero is another developer who can handle nearly every aspect of a project. “Details mean everything,” he said. High-quality construction of the public realm and buildings is essential, as are the right street standards, he said. Mogavero pointed to North Natomas, the City of Sacramento's primary growth area. There had been New Urbanist promise in the North Natomas plan, but that has disappeared partly because the public works department has dominated the public realm, Mogavero said. “The pedestrian doesn't have a chance,” he lamented. Solomon, the San Francisco architect, said a New Urbanist project must start with the right architect. “There are only a handful of talented, well-trained architects who practice New Urbanism,” he said. And they “are used to working with pretty indifferent builders.” Additionally, Solomon said, cost constraints often require compromises, placing even more pressure on the architect to maintain a project's New Urbanist spirit. One of the reasons the Congress for New Urbanism started handing out awards was to reward the execution of good design and planning, said Solomon. Redevelopment and New Urbanism Recent projects in downtown Redwood City have received their share of plaudits. The key to those and future projects' success, said Downtown Development Coordinator Dan Zack, is authenticity. “We want to have a real place,” he said. The Redwood City Redevelopment Agency is currently working with Blake Hunt Ventures to develop a cinema and retail project. To ensure the project doesn't turn into a lifestyle center or mall, the city insisted that the theater go on the second floor so that blank walls of the theater do sit at street level. “It doesn't act like a mall. You can't go from the parking structure to the cinema,” said Zack, who emphasized the attention paid to architecture and buildings' relationship to the street. “Because we're a partner on that project, we can go above and beyond what we would do in our regulatory role,” he said. In fact, Redwood City is currently rewriting its downtown zoning regulations as a precise plan. The final document should have typical zoning regulations that address setbacks, lot coverage and such, as well as detailed design rules. “We want to strike the balance between having clear, friendly regulations, and getting the good urbanism that we want,” Zack said. Regulations are important, of course, because the marketplace can turn intentions inside-out. A case-in-point might be the City of Oakland. The city has numerous dilapidated and under-used commercial and industrial areas, often on the edge of town. City planners have identified 13 such neighborhoods that are candidates for proposed “housing and business mix zoning districts.” The zoning could help revitalize the areas and legitimize some uses, such as artists' use of old warehouses. However, some sites are developing anew before planners can fully implement the new zoning, said Margot Lederer Prado, a city planner. An old, large industrial district near Oakland's border with Emeryville and Berkeley, for example, “is just going straight residential. It's not even work-live,” she said. Indeed, as developers and speculators have “discovered” Oakland, more old business areas are converting solely to residential uses. But, politically, there is little that planners can do. Nevertheless, Lederer Prado is able to point to some attractive, new live-work projects that are not necessarily pushed as New Urbanism, but certainly qualify. “The whole intent is to get these edge areas to develop in an interesting way,” she said. “It really gives a lot of flexibility to the infill guidelines.” Thus, true belief on the part of all the players may be one of the most important aspects of successful New Urbanist projects. “There were a lot of folks,” said New Urban Builders' DiGiovanni, “who though we were crazy for building houses that were going for the mid-$300s up against houses that, back then, were going for the mid-$100s.” Zack, a Fresno refugee, said Redwood City planners spend a great deal of time visiting New Urbanist and transit-oriented developments elsewhere. “We're believers and we understand it,” he said. “It's our passion. That will make a big difference.” Contacts: Tom DiGiovanni, New Urban Builders, (530) 893-8400. Tom Hayes, City of Chico, (530) 895-4851. David Mogavero, Mogavero Notestine Associates, (916) 443-1033. Daniel Solomon, Solomon ETC, (415) 575-4722. Dan Zack, City of Redwood City, (650) 780-7363. Margot Lederer Prado, City of Oakland, (510) 238-6766. Congress for the New Urbanism: www.cnu.org What is New Urbanism? Defining New Urbanism is not easy. To determine if a project is truly New Urbanist, the Congress for the New Urbanism offers the following tips: Rule out any project that is gated, lacks sidewalks, or has a tree-like street system, rather than a grid network. The project as a whole should connect well with surrounding neighborhoods, developments, or towns, while also protecting regional open space. Rule out single-use projects that are only housing, retail, or office. The various types of buildings - housing, workplaces, stores - should be integrated. The project should have a neighborhood center within that is an easy and safe walk from all dwellings in the neighborhood. Buildings should be designed to make the street feel safe and inviting, by having front doors, porches, and windows facing the street, rather than having a streetscape of garage doors. The project, and particularly the neighborhood center, should include formal civic spaces and squares. Finally, there is the "popsicle test." An eight-year-old in the neighborhood should be able to bike to a store to buy a popsicle without having to battle highway-size streets and freeway-speed traffic.

The long-running legal fight between a hotel and San Francisco has finally reached the U.S. Supreme Court. The high court agreed in December to review the Ninth U.S. Circuit Court of Appeals' most recent decision in . The North Beach hotel and the city have been locked in legal combat since the early 1990s over San Francisco's hotel conversion fee. After the city first adopted its hotel conversion ordinance 25 years ago, the San Remo was classified as a 62-unit residential hotel. When the owners sought to convert the hotel to tourist use, the city levied a fee of $9,000 per room to help fund replacement housing. The owners paid the fee but ever since have been challenging the levy as an unconstitutional taking of private property (see , April 2002, October 2000, July 1998). The litigation started out in federal court, but the Ninth Circuit said the hotel owners had to press their claims in state court first. The case then made its way through Superior Court, the First District Court of Appeal and finally the state Supreme Court. The state's high court ruled that no taking had occurred. After the state Supreme Court's early 2002 decision, the San Remo owners returned to federal court. This time, the Ninth Circuit refused to rule on the case, saying that the state Supreme Court had already decided the claims. "The facial and as-applied takings challenges raised in state court are identical to the federal claims asserted by the plaintiffs, and are based on the same factual allegations," the Ninth Circuit ruled. "The California Supreme Court decision was a final judgment on the merits." However, the Ninth Circuit's theory of “issue preclusion” - which has arisen in a few other recent cases, too - was counter to a 2003 ruling by the Second Circuit in , 342 F3d 118. The question that the U.S. Supreme Court will decide is this: “Is a Fifth Amendment takings claim barred by issue preclusion based on a judgment denying compensation solely under state law, which was rendered in a state court proceeding that was required to ripen the federal takings claim?” The high court will not consider the question of the proper constitutional standard for weighing the government exaction. The hotel owners have sought to use the “heightened scrutiny standard,” which requires a closer relationship between an exaction and a project's impact than the typical, deferential standard of review. The state Supreme Court said the deferential standard applied because of the general applicability of the regulation. The case is , No. 04-340.