The Salton Sea sits likes a time bomb in the desert, serving up a brew of bad smells, turgid waters and the potential to increase air pollution in an area where thousands of homes are planned. But under a proposal making its way through the Legislature, some of the sea's lurking hazards may be stopped. Instead, the Salton Sea may be shrunk to a third of its current 240,000 acres and revived as a recreational lake for sport fish and migrating birds. All it will take is billions of dollars and at least 75 years of maintenance. The sea, created accidentally from an overflowing diversion of Colorado River water 100 years ago, is Southern California's largest body of water. But for the past half century, it has been dying as its water supplies have been cut off and channeled to agriculture and growing cities. The lake will be officially considered dead by 2017, after about 300,000 acre-feet of agricultural runoff that now flows into the sea will be diverted instead to San Diego. This is not the first plan to save the lake, but the plan maybe the final hope. The state Resources Agency in May released a programmatic environmental impact report that has been embraced by stakeholders in the region. Before the end of the legislative year in September, action is expected on a bill, SB 187 (Ducheny), that would approve the plan, provide initial money and chart future steps. The cost � as much as $8.9 billion over 75 years, including millions of dollars a year for maintenance � may prove the most daunting part of the restoration. Only about $200 million will be available if the Legislature acts this session, leaving future outlays to be provided by money from a proposed redevelopment district, federal funding and future state bond measures. The EIR proposes cutting the existing 376-square-mile sea into a horseshoe shaped waterway with a 52- mile-long rock jetty. The jetty would be hugely expensive, costing an estimated $5.7 billion to construct. The northern portion of the lake would be reinvigorated primarily as a recreational lake with fish, while the southern half would be dried out in portions, ringed by a watery shoreline of smaller ponds for fish, plants and migrating birds. The southern half would include 64,000 acres of wetlands that would be stocked with small fish and worms on which birds feed. Cutting the lake in two and, therefore, having a much smaller area to replenish is one aspect of improving the water quality. The primary cause of poor water quality, however, is phosphorus from untreated agricultural runoff, according to Rick Daniels, executive director of the Salton Sea Authority, a local joint-use authority. A project-specific EIR is expected to address how the runoff would be treated. Work needs to be partially completed on the most critical areas by 2017, when runoff from Imperial County farmers that now flows into the lake will decrease because irrigation water will be transferred to San Diego, under terms of a 2003 agreement on the Colorado River among several water agencies (see CP&DR Legal Digest , August 2007; CP&DR , November 2003). "The sea is on its way to dying," Daniels summed up. The sea is dying as it grows more salty and its freshwater sources are cut back. The sea has 44 parts of salt per 1000 today, compared with 43 parts per 1000 in 1999, according to Daniels. In contrast, the Pacific Ocean's salinity is 35 parts per 1000. (See CP&DR Environment Watch , February 2000). That saltiness makes it hard for fish to survive. Eight years ago, for example, the sea was home to such fish as croaker and a sport fish named the corvine. But those fish, Daniels said, stopped reproducing. Today, only the hardy tilapia remains, and it too faces problems. Tilapia came to the sea after being added to nearby irrigation canals to eat vegetation growing there, and it adapted to the saltwater of the Salton Sea, he said. Today there are 200 million tilapia in the sea, but three million a year are dying off due to the increased growth of algae, which is fed by phosphorus in agricultural runoff from the Imperial Valley. And things could get worse. Under the state's preferred alternative in the EIR, a total of 62,000 acres of sea will be dried out, potentially creating more dust and decreasing air quality in the region. Daniels noted that dried up lakes in the Owens Valley have led to huge dust storms that make Owens Valley one of the most polluted air basins in the country. "We're afraid it's going to be worse" in the Salton Sea area, he said, The dried up land is called "exposed playa" in the state's EIR, but it's no day at the beach for future recreationists. The land will be off limits to the public, and it will be planted with salt tolerant vegetation and covered with gravel. The state plan anticipates that dust mitigation will be an ongoing expense. According to Dale Hoffman-Floerke, chief of the Colorado River/Salton Sea office of the California Department of Water Resources, a crust will form on the surface after the water evaporates, minimizing the dust. She disagreed with Daniels' contention that the state proposal will harm air quality. "Our goal is to insure that air quality is not made worse as the result of any restoration activity," she said. Daniels said the Salton Sea Authority continues to work with the state on its plan, but the authority has developed another plan that does not require as much of the sea to be dried up. Meanwhile, development continues in the region. More than 800 homes were built in Salton City, in unincorporated Imperial County, in the past two years alone, Daniels said, and other developers are waiting to start building thousands of approved housing units just north of the lake in Riverside County. Some may wait to see what the future holds for the lake before they begin building. "My belief is, as this progresses, there will be many more houses built there, as the water improves," Daniels said. Money for initial work on the sea is expected to come from $30 million in federal funding, along with $47 million from Proposition 84 bond funds approved by voters in 2006. Those funds will be used to restore and upgrade habitat along the New and Alamo rivers, which drain into the sea from the south in Imperial County. Also, as part of 2003 settlement on Colorado River water, Coachella Valley, San Diego and Imperial Irrigation Districts put $40 million each in a mitigation fund for the Salton Sea. Another $1 billion might come from a $10 billion water bond that State Senate President Pro Tem Don Perata has proposed. Daniels said there is also talk of creating a redevelopment district around the lake to raise another $1 billion. The Legislature authorized creation of the district in 2000. The redevelopment plan would capture increases in property taxes as land values begin to rise due to improvements to the sea, Daniels said. State officials are also expected to ask Congress to allocate another $1 billion next year, he said. Environmental groups, so far, are in favor of the state's EIR. "It's not perfect," said Kim Delfino, California director of Defenders of Wildlife, which represents a coalition of environmental groups including the Sierra Club and the Audubon Society through an organization called the Salton Sea Coalition. But the plan, she notes, does have the basic elements the groups are seeking: habitat for wildlife, and protection of air and water quality. Delfino and Hoffman-Floerke both said a key issue awaiting resolution is who will become the governing body for the sea's restoration. The organization will need to involve state, local and federal officials. Delfino said she is researching whether a partnership being used by state and federal governments to restore Florida's Everglades may be a good model for the sea. But, like Daniels, she said something must be done to restore the sea � and soon. "We're running out of time," she said. Contacts: Rick Daniels, Executive Director, Salton Sea Authority, (760) 564-488. Kim Delfino, Defenders of Wildlife, (916)313-5800, ext. 109. Dale Hoffman-Floerke, Department of Water Resources, (916) 651-7052. Salton Sea EIR: http://www.saltonsea.water.ca.gov

Even Orange County is going urban. The latest evidence is Lennar's "Central Park West" project – almost 1,400 condominiums, plus a little retail and office space, on a 43-acre site just off the Jamboree offramp of the 405 Freeway in Irvine. I visited the construction site on Monday (8/13) as part of an event sponsored by the Orange County chapter of the Building Industry Association. On its own terms, Central Park West ( www.cpwliving.com ) is a pretty good example of emerging Orange County urbanity. The math works out like this: an overall density in excess of 30 units per acre, a smattering of retail (20,000 square feet) and office space (90,000 square feet), as well as more than 4 acres of park space, plus roads and so forth. About 5% of housing consists of affordable ownership units. There's a variety of building types, including two- and three-story buildings; four- and five-story podium buildings; and two high-rises. Even the smallest buildings contain more than 20 units per acre. Most of the units go for close to a million. The market is clear: Young professionals and empty nesters who work in the nearby office buildings and don't want to fight the traffic. (The high-rises have great views of the eternal traffic jam on the 405.) Lennar proudly states that the company has followed all the rules of urban development: walkability, verticality, integrated retail, a community center, and no walls. No walls, at least, within the project itself. In the way it relates to surrounding areas, Central Park West is still what planners used to call a "pod" – completely walled off. The site – the former location of a low-rise manufacturing plant – is surrounded on all sides by high-rise structures, mostly office buildings. But it's bounded by the freeway on one side and by Jamboree and Michelson – very wide arterial streets – on two sides. The fourth side is along a little-used street, but it's basically a wall of parking garages that serve nearby office buildings, and Central Park West is walled off from that as well. There is some talk of building a pedestrian bridge across Jamboree to the nearby retail. And though there's some underground parking, especially for the high-rises, Central Park West pretty much sticks to suburban parking ratios (2+ per unit) and, for the smaller buildings, it sticks to the connection between all parking spaces and the unit itself. This may be a practical reality, but it really boxes in the designers, especially in the smaller buildings. The most luxurious low-rise condominiums have tandem parking spaces, simply because to do otherwise would force the density way down – if you want to maintain a connection between the unit and the parking. Unbundling the parking may work in downtown L.A., but apparently even developers thinking urban are still afraid to do it in Orange County. Then, of course, there's the name. The marketing idea, of course, is mid- and high-rise living overlooking what Frederick Law Olmsted used to call a "greensward". However, the grassy part of "Central Park West" is 2.2 acres. Just for the record, the real Central Park is 382 times bigger than that.

Director, Community, WRO The Urban Land InstituteLos Angeles, CA The Urban Land Institute is searching for a high quality Director, Community Outreach, for its new West Region Office. The incumbent must have strong internal consultative skills. We offer very competitive benefits and matching 401(k). Please send your resume and letter of interest to jobs@uli.org . ULI is proud to be an equal opportunity employer. SPECIFIC RESPONSIBILITIES: Work with ULI district council leadership and staff in the Western Region to adopt and adapt community outreach program models like Reality Check, Urban Marketplace, Inner City Advisors, and Smart Growth Alliances, which are underway in other District Councils. Develop and implement community outreach program models in workforce/affordable housing and sustainable development. Work on tasks to support projects funded through Foundation grants. Develop and implement strategies and products to transfer ideas and experiences among district councils, including writing guides, case studies and articles; organizing seminars and forums; and developing web-based communication tools. Develop and implement strategies, which link local district council outreach activities with ULI's national and global priorities and programs. Staff ULI Advisory Services panels. REQUIREMENTS: Masters degree in urban planning, public administration, real estate or a related field. Seven years experience doing comparable work with increasing responsibilities in related fields. Knowledge of and experience in affordable housing, state and local land use policy, smart growth, urban and community development and public/private partnerships, sustainable development. Experience providing technical assistance and outreach to state and local organizations, developing outreach programs to support local housing, urban development, and sustainable development and land use policy programs. Experience in working in membership organizations. Ability to work effectively and collaboratively with others. Strong written and oral communication skills. Must be able to act as an internal consultant. Ability to manage several projects at once. Facilitation skills a plus.

The California Environmental Quality Act has been blamed for holding up affordable housing, economic development, urban revitalization and public works projects. This year, however, marks the first time that CEQA has ever held up the state budget. We reported in July about efforts of environmental groups and Attorney General Jerry Brown to make global warming a consideration during CEQA reviews, and we followed up with a blog entry about how business and development interests were requesting "urgent legislation action" to head off the enviros. Democrats who control the state Legislature have no interest in such legislation, but Republicans apparently do. Republicans in the Senate are refusing to vote for a budget unless there is CEQA "litigation reform." The Republicans insist that global warming should not be a CEQA issue until the state adopts regulations implementing AB 32, last year's greenhouse gas reduction bill. Check out the Republican press release, "CEQA Litigation Reform Protects Taxpayers." Democratic Sen. President Pro Tem Don Perata counters that Republicans are only trying to protect "developers and oil refineries." Check out his press release, "I Will Not Bargain On California's Environment." I haven't a clue who might win this one. Both sides appear to have their heels dug in pretty well, and Gov. Schwarzenegger, who appears more estranged from his party all the time, is not even in town. What is clear, though, is that the sides recognize the stakes. The pro-development side argues that if global warming becomes a routine item for CEQA consideration, the environmental review process is going to get more complicated, longer and more expensive. The pro-environment side argues that such considerations would encourage projects that rely less on automobiles, which generate most of the greenhouses gases in California, and that fewer auto-dominated projects would be a good thing for multiple reasons. Yes, this really is a big deal. Too bad such an important policy consideration is caught up in secret negotiations and party politics. - Paul Shigley

So not everybody thinks downtown Long Beach is a better place than downtown L.A. But at least everybody agrees Fresno has the worst big-city downtown in California. We stirred things up recently when we ranked California's big-city downtowns . People in Long Beach loved us, while advocates of the new urban scene in L.A. were not happy. "How could anyone be so ignorant as to rank downtown Long Beach, which is like a northern extension of suburban Orange County, ahead of the downtown in the country's second largest city?" No one, however, has quibbled with our listing of downtown Fresno as the worst. No one. Poor Fresno. Now CP&DR is taking the next step: We're scrutinizing the downtowns in California's mid-sized cities. These are some of the most enjoyable downtowns anywhere — the sort of districts that planners take photos of while on vacation so they can show their city council back home. Think Santa Barbara and Pasadena. But are the downtowns in those ballyhooed and extremely expensive cities really the best? What mid-sized city might be commonly overlooked? What city is on the right track toward downtown greatness thanks to effective planning and thoughtful development? Conversely, what mid-sized city has a hopeless case for a downtown? Tell us what you think via comments at the bottom of this blog, emails or phone calls. If you speak up now, you just might influence the list that we intend to release in a few weeks. - Paul Shigley

Mathematicians often take delight in Cat's Cradle, the age-old game of making string figures on one's fingers. In the most familiar form of this game, one person starts out with a simple rectangle of yarn or string, and then makes a simple figure by looping different parts of the yarn around his or her fingers. This figure is then passed to the fingers of a second player, who introduces another layer of complexity into the figure before passing the increasingly complex string figure to a third player. And so on, until the figure becomes so complex that it becomes impossible to go further, at least with a two-foot length of yarn. Cat's Cradle is being used here as an analogy, admittedly an artsy one, to describe two different kinds of suburban planning. These two planning types – let's call them the ideal new urbanist village and the "builder vernacular" mixed-use neighborhood — do not look like one another, at least at first glance. The new urbanist village, in the hands of artists like Peter Calthorpe or Stefanos Polyzoides, is often a handsome design. Owing something to the traditions of the French Ecole des Beaux Arts, these designs set up a hierarchy of bigger spaces and major avenues that are broken down into smaller spaces and smaller streets. The intent is to create a sense of pervasive order that, in the minds of the most idealistic practitioners, gets translated into social order. In the builder vernacular version of the urban village, such as the 493-acre Fancher Creek project in southeast Fresno, the site plan would not end up under glass on your wall, unless you were a land developer or a home builder. Elegant it is not. This is the image of land as commodity, even if the land parcels are not subdivided into neat, regular blocks the way the old-time commodifiers did during the 1800s. The red ink-blot on the left-hand side of the plan will be a shopping center, while the pink triangle on the right will be a commercial-industrial park. The squidgy blue parts in the middle are housing; Centex Homes is already developing two subdivisions in Fancher Creek. The yellow rectangles represent schools, one existing and one planned. The pink rectangle at the bottom center of the plan, which is the most promising part of the plan, is a mixed-use shopping district. Although this area has not yet been planned, it might be reasonable to expect some loft housing, perhaps some live-work units, some retail-and-office hybrids and the like. Hopefully, social services—the dentists, doctors, child-care agencies and marriage counselors—may find places to work in this quadrangle. One disappointment of the plan is the relatively small amount of open space – a tiny park that serves as a buffer between an existing school and the mixed-use quadrant, and a second park that serves as a similar buffer between Fancher Creek (the actual waterway) and the existing neighborhood of labyrinthine suburban streets. (One good way to haze a new UPS driver would be to send him on deliveries in this neighborhood.) Another letdown of the plan is the minimal acknowledgement of the natural waterway, which many planners and landscape architects would seize upon as an organizing device, as well as a way to create a linear park that connects to larger parks along the way. Here, the creek serves little purpose beyond providing a natural barrier between new retail development and the existing neighborhood, or providing further separation between the new master-planned development and older housing. Those objections aside, this is a very workable plan that preserves most of the virtues that the new urbanists like to crow about: Residents can walk to shopping and services. Children in a majority of households can walk to a park without crossing a major arterial. (The exception is the baseball/community park, sequestered north of busy Belmont Avenue.) And the "four-corners" intersection of Fancher Creek Scenic Drive and Fowler Avenue would be a great place for a transit station, if one is not already planned. The new urbanist crowd may not be wowed by the curving configuration of residential streets with their many cul-de-sacs. Yet a close look at the neighborhood suggests that traffic planning has been done thoughtfully to allow neighborhood functions such as driving to school or the market to occur primarily on neighborhood roads, while regional traffic is held at bay on the periphery of the project. As future regional destinations, the shopping center and the "office-technology-industrial park" belong on the outer edges, where their potential traffic and air-quality impacts will have minimal effect on Fancher Creek residents. The closer one looks at the Fancher Creek site plan, in fact, the more it resembles an old-fashioned, hierarchal layout: The neighborhood-serving retail and services are in the middle, while the first concentric circle is made up of housing and schools. In the outermost circle are the big, "regional destination" shopping center and the tech park. The priorities, for the most part, are in the right order. For all its clumsiness, Fancher Creek could shape up to be a viable, mixed-use neighborhood. The obvious problem is that there is no necessary relationship between the employment centers and the residential neighborhoods. The unfortunate likelihood is that Fancher Creek homeowners will get in their cars and drive through hot, dusty streets of Fresno to far-away jobs, while other suburbanites will schlep from distant places to jobs in the pink triangle adjacent to Highway 180. That's not the fault of Fancher Creek's developers, a local venture of Fresno developers Tom Richards and Ed Kashian. The fault lies with lawmakers who preach the doctrine of jobs-housing balance but fail to encourage a stronger spatial connection between residence and employment. Klutzy or not, Fancher Creek is a big improvement on the previous suburban model, and may even turn out to be a good place to live.

OK, I'm totally obsessed with www.walkscore.com . This is one of those Google map manipulations – created by three Seattle residents – that allows you to plug in any address and get a walkability score of that location somewhere between 0 and 100. (It also shows you a map of all the businesses and services in close proximity to your address.) It's obsession-inducing because, if you're a place-oriented person, it isn't long before you are plugging in the address of everywhere you've ever lived or worked, along with the address of your siblings, cousins, ex-girlfriends, etc. The result is kind of a Rorschach test of place and pedestrian orientation. I discovered, for example, that I have never lived in a residence with less than 60 score (kind of walkable) and mostly I've lived in places with scores in the 70s and 80s (very walkable). The lone exception was the suburban home where I lived when I was married, which scored a 2! But it's illuminating if, like those of us around here, you're a planner who thinks constantly about what makes people walk versus what makes them drive. Because the scores are based entirely on the proximity of the address to a variety of businesses and services – such as grocery stores, restaurants, coffee shops, movie theaters, libraries, drug stores, fitness centers, and so forth. Walkscore doesn't account for urban design. If there's a river or a freeway in between you and that coffee shop a quarter-mile away, that doesn't count. If there is 43% slope uphill to get to the grocery store, that doesn't count either. This "flattened" approach to location really highlights one of the burning issues in planning: Is it services and functions that make people walk, or urban design? Planners and designers often seem to favor urban design, whereas economists and other skeptics tend to say it's proximity to businesses and services. It appears that the answer, not surprisingly, is both. Los Angeles is a great example of this dichotomy. L.A. is very densely built and things are in extremely close proximity to one another, but because of wide arterials and other barriers, you often can't get there from here on foot. Valley Vista Boulevard in Sherman Oaks, for example, scores a 72. But if you look at the resulting map, you'll see all the nearby businesses and services line Ventura Boulevard. You may or may not be able to actually walk to all those locations. So, Walkscore highlights the challenge of urban development in California: All the stuff is close-by, so how do you rig things up so you don't actually have to drive? PS: The Solimar office scores a 94. That means we're in a "Walker's Paradise," according to Walkscore. Of course, our score is helped by the following facts: • The nearest bar is conveniently located in the front of our building; • The nearest restaurant is the Burger King across the street; and • "The Adult Store," located three blocks away, counts as a bookstore. - Bill Fulton

One city's municipal services agreement with an Indian tribe has survived a legal challenge while another city's agreement has been struck down by an appellate court. The Fourth District Court of Appeal upheld Hesperia's municipal services agreement (MSA) with the Timbisha Shoshone Tribe. The agreement called for the city to provide police, fire, water and sewer services to the tribe's proposed casino, which would be within the city limits. The court rejected arguments that the MSA violated the Community Redevelopment Law's prohibition on providing assistance to a casino. Meanwhile, the Third District Court of Appeal rejected the City of Plymouth's MSA with the Ione Band of Miwok Indians. That deal called for the city to provide water, sewer and fire service, and to turn over a road to the tribe, which also intends to build a casino. The Third District ruled that the MSA should have undergone environmental review because it committed the city to certain actions. The MSAs have been controversial in both cities, perhaps more so in Plymouth, where voters recalled three elected officials because of the deal. In both cases, the tribes have asked the secretary of the interior to accept lands acquired by the tribes into trust so that the tribes may develop casinos. The City Council in the high desert city of Hesperia approved the MSA with the Timbisha Shoshone Tribe four years ago. Hesperia's redevelopment agency is a party to the MSA, as the proposed casino would be built inside the redevelopment project area. Casino opponents gathered enough signatures to force a referendum election on the agreement, but voters upheld the MSA. Hesperia Citizens for Responsible Development then sued the city, arguing that it had violated the Community Redevelopment Law (Health and Safety Code § 33000 et seq.) and had unlawfully surrendered the city's sovereign authority. San Bernardino County Superior Court Judge Stanford Reichert ruled for the city, a decision upheld by a unanimous three-judge panel of the Fourth District, Division One. Health and Safety Code § 33426.5 prohibits redevelopment agencies from assisting "directly or indirectly" any business that involves gambling. Citizens argued that the redevelopment agency was providing assistance by endorsing the tribe's application to the secretary of interior and by ceding land use control and revenue to the tribe. The court rejected the arguments. While the city itself might provide assistance to the tribe, the redevelopment agency would not, as the agency does not provide water, sewer, police or fire services. "There is nothing in § 33426.5 that suggests that redevelopment agencies cannot be parties to contracts in which other governmental entities provide assistance to gaming entities," Justice Cynthia Aaron wrote for the court. Any loss of control or revenue, Aaron continued, would be a function of the property becoming trust land for the tribe, not of the MSA. The court also rejected arguments that the city should have insisted that the tribe abide by redevelopment law mandates, such as setting aside 20% of tax increment for affordable housing and adopting non-discrimination policies. "Citizens has not identified any obligation in the Community Redevelopment Law that requires the agency to insist on such terms for all developments occurring within a redevelopment area," Aaron wrote. As for the city relinquishing authority, the court again determined that any loss of authority would be the result of the land going into trust, not of the MSA. The lawsuit over the Plymouth MSA was different. In 2004, the council in the small Sierra foothills town agreed to provide water, sewer and fire service, and to abandon a road where the Ione Band's proposed casino and hotel would be located. In exchange, the tribe agreed to pay the city $5.85 million in one-time fees and infrastructure costs, and $3 million annually for maintenance and service. Several months later, voters recalled the mayor and two councilmembers who supported the MSA. In addition, Amador County and a group called No Casino in Plymouth sued, contending that the MSA was subject to the California Environmental Quality Act (CEQA). Judge Glenn Ritchey Jr., a retired Stanislaus County Superior Court judge, ordered the city to set aside the MSA because it had not undergone environmental review. The reconstituted City Council declined to pursue an appeal, so the Ione Band took up the appeal. The tribe offered numerous arguments that the MSA was not a "project" within the meaning of CEQA, and that the city's adoption of the MSA was not approval of a project. The tribe argued that the MSA was simply an intergovernmental agreement between a tribe and a city government, which is expressly not subject to CEQA. The court disagreed. The MSA committed the city to building sewer and water connections, remodeling a fire station so that it may be staffed 24 hours, and vacating a road. Those are activities that "could produce a physical change in the environment subject to CEQA," the unanimous three-judge panel ruled. The court rejected the tribe's contention that the casino (or "gaming development") was the project, not the MSA. "The public works and road vacation constitute a project subject to CEQA and the MSA constitutes the approval or contingent approval of the project," Justice Coleman Blease wrote. "That the tribe could itself provide the municipal services required by the gaming development is irrelevant so long as the MSA is in effect." According to Third District, the MSA is not like the memorandum of understanding that the City of Rohnert Park signed with the Federated Indians of Graton Rancheria and which was upheld as exempt from CEQA in Worthington v. City Council of Rohnert Park , (2005) 130 Cal.App.4th 1132 (see CP&DR Legal Digest , October 2005). The Rohnert Park MOU called for the tribe to make "voluntary contributions" to the community in exchange for the city not opposing a proposed casino. In addition, the MOU did not obligate the city to undertake specific construction projects, and the agreement acknowledged that CEQA review might be required if the city were to provide infrastructure. In addition, the statute (Government Code § 12012.40) excluding city-tribe agreements from CEQA only applies when a tribe has signed a compact with the state and the federal government has taken lands into trust for the tribe. Neither has occurred for the Ione Band, the court noted. Another lawsuit over the proposed casino is just getting started. Earlier this year, Amador County sued the U.S. Bureau of Indian Affairs for approving the Ione Band's status as a "restored tribe." The county requested that the bureau halt consideration of the tribe's land request. First Case: Hesperia Citizens for Responsible Development v. City of Hesperia , No D049614, 07 C.D.O.S. 6245, 2007 DJDAR 8069. Filed May 30, 2007. The Lawyers: For Hesperia Citizens: C. Robert Ferguson, (909) 482-0782. For the city: William Hauck, Covington & Crowe, (909) 983-9393. Second Case: County of Amador v. City of Plymouth , No. C050066, 07 C.D.O.S. 4140, 2007 DJDAR 5253. Filed April 17, 2007. Modified May 10, 2007 at 2007 DJDAR 6643. The Lawyers: For the county: Martha Jeanne Shaver, county counsel, (209) 223-6366. For the Ione Band of Miwok Indians: Paul Workman, Holland & Knight, (213) 896-2400.

Two recent court decisions have helped clear the way for the largest water transfer ever contemplated in the United States: 300,000 acre-feet of water from the Imperial Irrigation District to San Diego, Los Angeles and the Coachella Valley. In a federal court lawsuit, the Ninth U.S. Circuit Court of Appeals ruled that the Tax Relief and Health Care Act of 2006 exempted a water canal improvement project from federal environmental laws. The lining project is necessary to preserve water that would be transferred to San Diego. In state court, the Third District Court of Appeal threw out on technical grounds a suit filed by Imperial County that contended the environmental impact report for the water transfers was inadequate. The court determined that Imperial County did not name two "indispensable parties" when it filed the lawsuit. The federal court litigation over environmental issues turned on the 274-page omnibus tax bill passed in December 2006 by a lame-duck Congress. The bill contained a "rider" that requires the secretary of interior to carry out "without delay" the lining of the All American Canal "notwithstanding any other provision of law." The canal carries water from the Colorado River to the Imperial Valley. According to the Ninth Circuit, the budget act made moot the legal challenges filed by environmentalists and Mexican nationals based on the National Environmental Policy Act (NEPA), the Endangered Species Act, the Migratory Bird Treaty Act and the San Luis Rey Indian Water Rights Settlement Act. Project opponents contend that lining the canal with concrete will destroy habitat and farms that are sustained by seepage from the earthen canal. "If Congress had intended for the lining project to proceed under the usual course of administrative proceedings, it would have been unnecessary for Congress to act at all," Circuit Court Judge Sidney Thomas wrote for the unanimous three-judge panel. "The environmental challenges would have been resolved in due course. However, proceeding along the usual course of resolving environmental disputes would be inconsistent with the Bureau of Reclamation proceeding ‘without delay' ‘upon the enactment of this Act.'" The lining project involves replacing 23 miles of earthen canal with a concrete-lined channel. Lining that portion of the 82-mile-long canal would prevent about 67,000 acre-feet of water (enough to serve about 140,000 housing units) from seeping away into the ground. That amount of water would then be transferred from the Imperial Irrigation District to San Diego County, which is funding the project. The $300 million lining project and the water transfer are part of a larger 2003 Colorado River agreement involving numerous states, water purveyors and the federal government. The litigation decided by the Ninth Circuit was filed by a Mexican community group, two environmental organizations and the City of Calexico against the United States. Numerous water agencies intervened as defendants. The Mexican group, the environmental groups and Calexico argued that the project's environmental impact statement was inadequate under NEPA. The environmental groups also contended that other environmental laws were being violated. All of the plaintiffs complained that the lining project would dry up groundwater sources that serve farms and wetlands south of the border. The government argued that the 2006 budget act made the environmental claims moot, and that the court had no jurisdiction over the other claims. The Ninth Circuit agreed. If the court upheld the environmental claims, it would delay commencement of the lining project — in violation of the 2006 budget act, the court ruled. The plaintiffs argued that the act itself is unconstitutional because it requires action by the state, dictates the outcome of a pending judicial case and denies Latinos fundamental rights. The court, however, quickly dismissed those arguments. The court said that due process and takings claims filed by the Mexican group should be directed to the Court of Federal Claims. Other arguments seeking to block the project are barred by the federal government's sovereign immunity, the Ninth Circuit concluded. In state court, Imperial County attempted to argue that the annual transfer of 200,000 acre-feet of water to San Diego County Water Authority and 100,000 acre-feet to Metropolitan Water District of Southern California and Coachella Valley Water District would have impacts not adequately addressed in an environmental impact report. The county contends the transfers would harm the local economy and environment. Sacramento County Superior Court Judge Roland Candee threw out the suit because the county initially failed to name the Met and the Coachella district. The original lawsuit named only the State Water Resources Control Board, the Imperial Irrigation District and the San Diego agency. On appeal, the county made numerous arguments as to why the lawsuit should go forward and why the Met and the Coachella district were not named in the suit until after the California Environmental Quality Act statute of limitations had passed. The Third District, however, upheld the lower court. The court determined that the Met and the Coachella district have "differing and possibly conflicting interests" from the other parties in the lawsuit and, therefore, the Met's and Coachella's interests may not be adequately represented. In addition, Imperial County may press its claims in other state litigation over the water transfer, ruled the court, which rejected the county's reasons for failing to name the entities in the first place. Additional litigation is pending in Sacramento County Superior Court and in federal court. Federal Case: Consejo de Desarrollo Economico de Mexicali, A.C. v. United States , No. 06-16345, 07 C.D.O.S. 3658. Filed April 7, 2007. Some of the Lawyers: For Consejo de Desarrollo: Gaylord Smith, Lewis, Brisbord, Bisgaard & Smith, (619) 233-1006. For Desert Citizens Against Pollution: Gideon Kracov, (213) 629-2071. For the San Diego County Water Authority: Daniel Hentschke, (858) 522-6791. State Case: County of Imperial v. Superior Court , No. C048984, 07 C.D.O.S. 6883, 2007 DJDAR 8843. Filed June 14, 2007. Some of the Lawyers: For the county: Antonio Rossmann, Rossmann & Moore, (415) 861-1401. For the state Water Resources Control Board: Matthew Goldman, attorney general's office, (916) 324-4223. For Imperial Irrigation District: David Osias, Allen, Matkins, Leck, Gamble & Mallory, (619) 233-1155.

The saga of plan check and building inspection fees in Orange County continues, as an appellate court has ruled that the county must reduce fees by $4.5 million and pay nearly $1.4 million in attorney fees and court costs. From 1992 to 1999, the county accumulated $18.5 million in excess plan check and building inspection fee revenue. To retire the excess, the county reduced fees and provided refunds to builders who had not received final inspections. It also dedicated some of the excess revenue to fee-related improvements and services. However, a trial court ruled — and the Fourth District Court of Appeal agreed — that $4.5 million of expenditures were not "reasonable and necessary." The court ordered the county to reduce fees by $4.5 million until the excess is burned off. The fee controversy dates back nearly a decade, when builders complained that Orange County plan check and building inspection fees did not correlate to the level of service. A report prepared for the county by consultant DMG Maximus in 1999 identified the $18.5 million surplus in a plan check and building inspection account known as Fund 113. Over the next three years, the county eliminated the entire surplus and in late 2002 laid off dozens of planners and building inspectors because of what had become a $500,000-a-month deficit. The mess cost both the county executive officer and the community development director their jobs (see CP&DR In Brief , March 2003, February 2003, January 2003). Developer Barratt American, which has challenged similar fees in numerous jurisdictions, filed a lawsuit in September 1999. That litigation went forward in three different phases. The Orange County Superior Court appointed a special master to identify revenue and costs, and the court later appointed an expert under a provision of the evidence code to do more investigation. Ultimately, in January 2005, the trial court found that the county had properly spent $14 million of the Fund 113 surplus by buying a new computer system, increasing staff levels, reducing fees and providing refunds. However, the court determined that the county could not show how $4.5 million in various overhead and service-related charges were reasonably necessary. The court ordered a future fee reduction in that amount and awarded Barratt American attorney Walter McNeill (who has filed many similar lawsuits on the developer's behalf) fees enhanced by 250% because of the unique issues and McNeill's capability. Both sides appealed. Barratt American argued that the Mitigation Fee Act (Government Code § 66000 et seq.) prohibited the county from spending any of the surplus fee revenue and the county should instead lower fees by the amount of the excess. The county argued that the trial court misconstrued what expenses were reasonably and necessarily related to providing services, and that the award of fees was erroneous. Neither side got anywhere with the Fourth District. To Barratt American's contention, the court said: "Using surplus fee revenue to cover the reasonable and necessary costs of the services rather than merely lowering the fees until the surplus is dissipated has the effect of ‘reducing' the future fees. This construction comports with common sense by allowing the county flexibility in managing Fund 113 as long as those costs are reasonable and necessary." To the county's argument, the court said: "There is ample evidence to support the trial court's conclusion that the county did not carry its burden to show $4.5 million of surplus expenditures were applied to reasonable and necessary costs of the fee-related services. Both the special master and Holder reported that the county failed to explain the startling increase in overhead — ‘a 206% increase in three years.'" The Fourth District also found the fee award appropriate under the private attorney general statute (Code of Civil Procedure § 1021.5) because, "Ensuring that the county fulfill its statutory duty to use the fee revenue surplus vindicates an important public right." The county has asked the state Supreme Court to review the case. Less than two years ago, the state high court in Barratt American, Inc. v. City of Rancho Cucamonga , (2005) 37 Cal. 685, rejected most – but not all – arguments the developer advanced in an unrelated but somewhat similar lawsuit (see CP&DR Legal Digest , January 2006). The Case: County of Orange v. Barratt American, Inc ., No. G035627, 07 C.D.O.S. 4781, 2007 DJDAR 6090. Filed April 30, 2007. The Lawyers: For the county: Jeffrey Dunn, Best, Best & Krieger, (949) 263-2600. For Barratt American: Walter McNeill, (530) 222-8992.

The owner of two parcels that the City of Berkeley wants to merge may not avoid the merger with a paper transfer of title to his wife, the First District Court of Appeal has ruled. However, the court stopped short of canceling the grant deed, ruling only that the city may be entitled to an injunction prohibiting further transfer of the property title. The Subdivision Map Act permits cities and counties to force the merger of contiguous parcels under common ownership if one of the parcels is substandard or if its development would create a hazard. In 2004, Berkeley began the process of merging undeveloped, substandard lots in the Panoramic Hill area because the exceptionally steep area lacks good vehicle access, has inadequate sewage capacity, and is particularly susceptible to fire and earthquake damage. On September 28 and again on September 30, 2004, the city notified Maarten Kalway that it was in the process of merging his two lots, one on Mosswood Road and one on Arden Road. Both parcels are on dead-end streets lacking adequate room for fire trucks to turn around, and the 5,000-square-foot, undeveloped Mosswood parcel is far smaller than the 9,000-square-foot minimum required by zoning. Kalway, who had inherited the real estate, told the city that he had deeded the Mosswood parcel to his wife, Mary Kalway, on September 27. The city Planning Commission concluded the transfer was completed solely to the Subdivision Map Act's purpose, so the commission went ahead with the two-lot merger. The Kalways then sued the city. The Alameda County Superior Court ruled for the city and canceled the grant deed. The Kalways appealed, and the First District issued the slightly confusing decision that the city can force the lot merger but cannot cancel the grant deed. The Kalways admitted that they undertook the title transfer to avoid the forced lot merger. Essentially, they argued that because Maarten Kalway held title to one parcel and Mary Kalway held title to the other lot on the date the city notified them of the merger process, the city could not force the merger. However, the First District determined that the map act allows "local agencies to look past the paper title in determining whether properties are under common ownership for purposes of the merger statues." The map act balances the public's interest in orderly community development with private property rights, the court noted. "To allow owners such as the Kalways to avoid merger, and the salutary effects of the act, by means of a paper transfer of ownership, is inconsistent with the purpose of the act and the balance struck by its provisions," Justice William Stein wrote for the court. "The Kalways' interpretation, if adopted also would discourage open discussion and planning by local agencies, as it would create a loophole for any property owner receiving advance warning of a potential merger." "In sum, where two or more properties have the same owner in substance, even if not in form, they may be merged if the act's substantive conditions for merger exist and its procedural requirements are met," the court ruled. Nevertheless, the court ruled that neither it nor the city could cancel the grant deed. The court did determine that Mary Kalway "has no right to further transfer title to the illegally created Mosswood Road parcel except back to Mr. Kalway, and the city may be entitled to a prohibitory injunction against either or both of the Kalways to prevent the further conveyance of the parcel." But the court declined to issue such an injunction. The Case: Kalway v. City of Berkeley , No. A112569, 07 C.D.O.S. 6290, 2007 DJDAR 7895. Filed May 31, 2007. The Lawyers: For Kalway: Jonathan Quint, (510) 595-9130. For the city: Zach Cowan, city attorney's office, (510) 981-6950.

Two cities known for providing a large chunk of the Coachella Valley's affordable housing may soon see some more upscale and very different development. Early this year, the City of Indio approved a master plan for a 48-acre mixed-use development that is proposed to feature nine 10-story condominium towers and more than 500,000 square feet of commercial space. Meanwhile, the nearby City of Coachella is starting work on a specific plan for a 4,000-acre "entertainment commercial district" that the city envisions as the home for golf course resorts, a theme park, an amphitheater, an equestrian center, a soccer stadium and extensive residential and retail development. For many years, the two cities at the east end of the Coachella Valley were poor sisters to their more upscale neighbors, such as La Quinta, Indian Wells and Rancho Mirage. Indio and Coachella provided housing for people who work on the valley's farms and in the hospitality industry. The cities still have some of the valley's most inexpensive housing. But as Indio and Coachella grow rapidly, their demographics are changing. Both cities are seeing more middle-class workers and retirees, and Indio in particular is experiencing a growth in tourism. Both Indio and Coachella qualify as more growth-friendly than most jurisdictions in the sun-drenched valley. The population of both cities has more than tripled during the last 25 years — to 77,000 in Indio and to 38,000 in Coachella. "Projected buildout," said Indio Development Manager Mariano Aguirre, "is maybe as high as 150,000 people. We are estimating that we could reach that within 10 years." Indio has a number of fairly routine housing and shopping center development projects moving forward, including the third phase of the Del Webb/Pulte Homes Shadow Hills project, which will add 950 units to the existing 2,200-unit project for the 55-and-older crowd. Attention, however, is focused on Polo Square, which would be unlike anything in the Coachella Valley or anywhere else in Riverside County. Located along Highway 111 between Jefferson and Monroe streets, Polo Square is proposed to have 512 condominium units in nine, 140-foot-tall towers; a 10-story, 250-room hotel; a 120-room extended-stay hotel; 550,000 square feet of retail and restaurant space, some of it with lofts on upper floors; and roughly 80 single-family houses. The city approved a master plan, general plan amendment, rezoning and environmental impact report in January. Developer William Swank Sr. said his team is working on tentative maps and design details to submit to the city in hopes of breaking ground during the summer of 2008. Swank said he wants his project to be very different from run-of-the-mill, auto-dependent development that he says cities encourage with their strict zoning and design restrictions. "You're either going to go up, or you're going to go out," Swank said. "I hope that others will follow. This project — not just because of me — will change the valley in a very positive way." "If we're going to have any open space at all, we're going to have to go vertical," Swank continued. "The reception we've been getting has been great. We've got enough people to fill up our project." For a project of its magnitude, Polo Square generated very little opposition. Only two residents complained during the public hearing at which the City Council approved the project, and no one challenged the EIR in court. Swank said extensive community outreach and thoughtful design won over the neighbors. The towers will be thin structures, so they won't block views of the mountains. Plus, about half of the site will consist of patios, landscaping and open space. In July, Swank, who built projects in Asia and the Middle East for 20 years, announced that he had lined up $60 million in financing from a consortium of Korean banks, enough to press ahead with what could eventually be a $600 million development. Polo Square is a critical project for Indio, Aguirre said. "It's one of the biggest mixed-use projects anywhere," he said. Swank spoke highly of Indio officials, who were able to process his master plan and related planning documents in only two years. "The city has bought into our project," said Swank, who refers to the project as a city within a city. "We started off looking for a site for two hotels, and it grew from there." Polo Square appears to be the real deal. In Coachella, the city's entertainment commercial district remains more the stuff of big dreams. When it updated its general plan in 1998, the city established the district on 4,000 acres of cropland, open space and Indian lands along Interstate 10 and Highway 86. The city has since adopted a vision plan for the district that speaks of shopping centers, golf courses, equestrian centers and a variety of housing. However, the only significant development within the district is two tribal casinos and two massive truck stops. That could be changing soon, said Carmen Manriquez, the city's community development director. The city recently hired the Planning Center to help with a specific plan process, during which planners intend to revisit the existing land use designations. A specific plan will provide necessary guarantees for both developers and the city, Manriquez said. There is a possibility of increasing residential densities because of demand for such development. "There are projects out there that would like to move forward," he said. The city is also embarking on a general plan update, and it recently received one of the Southern California Association of Government's "two percent" grants to do some intensive town planning. Manriquez said the three processes — specific plan, general plan update and two-percent plan — could eventually merge together. One issue facing city officials is a lack of public interest in long-term planning, said Manriquez, who added that the city is working to generate interest and keep people engaged. Contacts: Carmen Manriquez, Coachella Community Development Department, (760) 398-3102. Mariano Aguirre, Indio Community Development Department, (760) 391-4120. William Swank, Polo Square Partners LLC, (760) 777-1557. Coachella Entertainment Commercial District Vision Update: http://www.coachella.org/Vision%20Update.htm Polo Square website: http://www.polosquare.com/