Auburn Dam is the public works equivalent of a Hollywood zombie, rivaling any Tinseltown creation in its ability to withstand repeated attempts to kill it. First proposed nearly a half-century ago for a site in the American River canyon near the Gold Rush town of Auburn, the dam has withstood attacks by U.S. presidents, member of Congress, state and federal agencies, environmentalists, tax watchdogs, scientists, engineers and even nature itself — the political equivalent of being shot, stabbed, drowned, poisoned, electrocuted and set on fire. But thanks to the dogged efforts of the area's congressman, Granite Bay Republican John Doolittle, the corpse is twitching again. Last summer and fall, after Hurricane Katrina walloped the Gulf Coast, lawmakers raced to capitalize on the attention-grabbing disaster, pointing to eerie parallels between sodden New Orleans and the flood-menaced region at the heart of California: the low-lying bowl occupied by Sacramento, its expanding ring of suburbs, and the Sacramento-San Joaquin River Delta. The strategy was effective. California received long-sought appropriations to bolster its levee system and increase capacity at Folsom Dam, Sacramento's primary bulwark against inundation. But local lawmakers wanted more than money for widely supported improvements to existing flood-protection systems. Doolittle, a senior member of the House Appropriation Committee's water and energy subcommittee, also stuck $4 million for Auburn Dam studies into the $30 billion budget bill intended to fund the Army Corps of Engineers (COE) and U.S. Bureau of Reclamation (USBR) for the fiscal year beginning October 1. Most of the earmarked money — $3 million — would be used to update a 1996 feasibility study of the dam. The other $1 million would pay for a study of the relocation of Highway 49, which would be inundated by the Auburn Dam reservoir. The money won House approval, and it also was included in the version of the COE/USBR budget bill approved June 29 by the Senate Appropriations Committee, although Sen. Dianne Feinstein inserted a provision preventing that money from being spent until completion of an updated cost-benefit analysis of the dam that Doolittle requested last year. That update expected by the end of this month. The news that Auburn Dam is showing new signs of life drew a melodramatic reaction from Jonas Minton, water policy adviser for the Planning and Conservation League, who responded with a curse and a scream of mock horror when a reporter called. His reaction was typical of dam opponents who have been battling what one group, Protect American River Canyons, refers to as "Doolittle's tiresome obsession" for a generation. The saga began during the 1950s with construction of Folsom Dam, which was designed to protect Sacramento from the magnitude of storm that statistically could be expected to occur only once every 250 years. Floods in 1955, 1963 and 1965, however, demonstrated that the hydrologists' estimates of potential runoff had been far too low. Folsom Dam, the flood experts decided, provided protection only from a 120-year storm. Subsequent flooding prompted them to lower that estimate still further, to a 78-year storm. To many Sacramento-area politicians, business owners and community leaders, the solution to the city's watery woes was not to prohibit floodplain development but to build another dam just upstream from Folsom. At the behest of local representatives, Congress authorized Auburn Dam in 1965 on the Middle Fork of the American River. Work began in 1967, but nature interfered before construction had proceeded beyond preliminary site preparation. In 1975, an earthquake struck about 45 miles away near Oroville Dam. At magnitude 5.7, the quake was far more powerful than Auburn Dam had been designed to withstand, and it occurred on a fault system geologists suspected might be related to one that ran directly beneath the Auburn Dam site. Work halted and never resumed, although Doolittle has repeatedly tried to have Congress reauthorize it. Opponents have battled the dam tenaciously since the 1970s, seizing on its dubious economics — studies have demonstrated that the water and flood protection it would offer can be provided far more cheaply through other means — the environmental damage from drowning wildlife habitat, and the recreational opportunities eliminated by inundating 40 miles of river canyon popular with rafters, kayakers, equestrians and runners. Opponents have also argued that the seismic risk is too great. "It is just plain irresponsible to propose building the sixth-highest dam in the United States in an active fault zone right above a major population center," hydrologist Tony Finnerty and UC Davis professor Jimmy Sparrow wrote in a recent essay for the Sacramento News & Review . They warned that the seismic failure of Auburn Dam would unleash a torrent that would also collapse Folsom Dam and send a wall of water 100 feet high washing over Sacramento. Four years ago, apparently surrendering to political reality, the USBR began working to restore the river through the Auburn Dam site, construct a permanent pumping plant to replace water that local agencies had been promised from the never-completed reservoir, and to block a diversion tunnel carrying the river around the dam site. But neither criticism nor the apparent lack of interest by the USBR has daunted Doolittle, who's been championing the dam for more than two decades. He says it offers the best chance to protect Sacramento and its suburbs from flooding, secure adequate water for the region, and help meet the state's growing demand for electricity. "Without an Auburn Dam we could soon be in the unenviable position of suffering from both severe drought and severe flooding in the very same year," Doolittle wrote in an op-ed for the Sacramento Bee . Ultimately, money may prove the deciding factor. With construction estimates running as high as $5 billion and USBR able to pick up only 65% of the tab, the local share required before construction could start would be substantial. The American River Authority, an obscure joint-powers agency, has discussed becoming a local sponsor of the project, although it has a minuscule budget and no apparent source of additional financing. A booster organization known as the Auburn Dam Council has proposed creating a regional Auburn Dam Authority encompassing Placer, El Dorado, Sacramento, San Joaquin and Yolo counties, and issuing revenue bonds financed by the sale of water and power. But with the cost of such water estimated at more than $1,000 an acre-foot — twice the going rate — it is unclear who would buy. Still, as they say in the horror movies, "It is alive." Sources: Rep. John Doolittle, (202) 225-2511. Auburn Dam Council, (916) 967-6197. Protect American River Canyons: www.parc-auburn.org

In a case closely watched by cities and counties, a sharply divided California Supreme Court has ruled that counties have the authority to prohibit logging on private land. In a 4-3 decision, the state's high court upheld two Santa Cruz County logging ordinances and stood behind a 1995 appellate court ruling that said the state Forest Practice Act is not the sole authority on commercial timber operations. The decision was a relief to local governments, which feared a reverse ruling would impinge on local land use authority. Instead, the court ruled against logging and property rights advocates that sought to minimize local regulation. Timber interests and property rights advocates argued that the Forest Practice Act pre-empted local authority. But Fran Layton, an attorney who argued the county's case at the state Supreme Court, said the court recognized that the state law did not override local zoning authority. "What's important is the court's recognition of the pre-emption principles. When, as here, you have an area that has historically been regulated by local government, there is a presumption against pre-emption," Layton said. "It goes beyond logging. It goes right to the heart of the zoning power of local government. It is the responsibility of local government to prevent land use conflicts through zoning." In the majority opinion, Justice Kathryn Werdegar wrote, " n many places where it addresses timberland zoning, general state forestry law expressly preserves and plainly contemplates the exercise of local authority. The actual designation of TPZ's , for example, is left to local action." Chief Justice Ronald George and Justices Ming Chin and Carol Corrigan joined Werdegar. In a dissenting opinion, Justice Carlos Moreno asserted, "The majority pulls an interpretive rabbit out of a statutory hat." Moreno, who was joined by Justices Marvin Baxter and Joyce Kennard, wrote that the Forest Practice Act's "pre-emption provision speaks in terms that are expansive enough to leave no doubt that the Legislature intended to displace all local rules, ordinances and resolutions specifically regulating timber operations." Environmentalists and timber companies have fought about logging in the Santa Cruz Mountains of Santa Cruz, Santa Clara and San Mateo counties since at least the 1960s. In fact, local brakes on logging in the Santa Cruz Mountains were partly responsible for adoption of the Forest Practice Act (FPA) in 1973 — and major amendments in 1982, when the Legislature strengthened the FPA to forbid counties from regulating "the conduct of timber operations." At the same time, the state adopted the Timberland Productivity Act (TPA), which seeks to place all qualifying timberland in TPZ's — zones that restrict land use to the growing and harvesting of trees in return for reduced property taxes. The FPA, however, addresses the conduct of logging, not the location , and in 1995, the First District Court of Appeal upheld a San Mateo County ordinance mandating a 1,000-foot buffer between timber operations and residences (see CP&DR Legal Digest , February 1995). That case, Big Creek Lumber Co. v. County of San Mateo , 31 Cal.App.4th 418, bolstered local governments, including Santa Cruz County, which in 1999 adopted several ordinances affecting timber harvesting. So Davenport-based Big Creek Lumber returned to court. In 2004, the company won when the Sixth District Court of Appeal ruled that the First District was wrong in Big Creek v. San Mateo and that there was no difference between the how and the where of timber operations (see CP&DR Legal Digest , April 2004). But the timber company's victory was short-lived, as the state Supreme Court held that the 1995 ruling was correct. The state Supreme Court decided the validity of two Santa Cruz County ordinances. One is a zoning ordinance that prohibits commercial logging except on land zoned for timber production, mineral extraction, or parks, recreation and open space. The second ordinance requires helicopter staging, loading and servicing facilities associated with logging to be located on land zoned for timber harvesting or on an adjacent parcel, and within the boundaries of a timber harvest plan. The appellate court ruled that the county was regulating the conduct of timber harvesting in the most extreme way — by prohibiting logging outright. But in a decision that cites Big Creek v. San Mateo at length, the state Supreme Court disagreed. (Interestingly, Justices Chin and Corrigan, who were in the majority, were on the First District panel that decided Big Creek v. San Mateo . The lumber company asked the judges to recuse themselves, but they declined to do so.) The state Supreme Court determined that there is a difference between the how and the where of logging, and that the FPA and TPA contemplate that local officials may determine where timber harvesting occurs. "Certainly, neither the TPA nor the FPA suggests localities are restricted in what uses they may prohibit outside TPZ zones," Justice Werdegar wrote, citing Big Creek v. San Mateo . "‘Nowhere in the statutory scheme,' in fact, ‘has the Legislature expressly prohibited the use of zoning ordinances.'" Werdegar noted that the Legislature added Public Resources Code § 4516.5(d) to the FPA during the same session that it enacted the TPA. "That the legislature would, in the same session, include in one general forestry statute numerous provisions that rely upon local zoning authority and when amending another general forestry statute forbid localities' exercise of such authority seems unlikely," Werdegar wrote. "Plaintiffs' overriding concern appears to be that localities may by locational zoning prohibit timber harvesting altogether," Werdegar continued. "The ordinance before us does not have that effect, nor does it appear that any county has attempted such a result. … To require that commercial timber harvesting occur on land in a ‘timberland production' or other specified zone is no more a ban on timber harvesting that a regulation requiring that industrial land uses occur on land zoned "industrial" is a ban on factories." Justice Moreno took exception to this point in the dissenting opinion, writing that the court's distinction between how and where "provides a roadmap for those who would use technical artifices to evade the letter and spirit of the FPA." "I doubt," Moreno continued, "that it intended to create a cottage industry in the drafting of local ordinances that appear to regulate only where timber operations may occur, while in actual practice directing how these operations may take place." Layton, the county's attorney, said Moreno arrived at his conclusion by assuming that the county prohibited logging. But the lawsuit was a facial challenge of ordinances, not a challenge to the county's denial of a particular timber harvest, she noted. "If you want to log, rezone to the appropriate zone, which is timberland production," she said. State law requires the county to rezone land that qualifies, and the county has done so since it adopted the ordinances in question, she said. Big Creek owner Bud McCrary told the San Jose Mercury News that the decision puts 60,000 acres off limits to loggers, a figure that county officials disputed. The Case: Big Creek Lumber Co. v. County of Santa Cruz , No. S123659, 06 C.D.O.S. 5802, 2006 DJDAR 8572. Filed June 29, 2006. The Lawyers: For Big Creek: Craig Stewart, Jones Day, (415) 626-3939. For the county: Fran Layton, Shute, Mihaly & Weinberger, (415) 552-7272.

The California Supreme Court in July accepted four cases with direct and indirect land use implications. The case that is likely of most interest to planners involves a City of Hanford ordinance regulating who may sell furniture. The ordinance prohibits furniture sales outside of downtown with the exception that stores of at least 50,000 square feet may devote up to 2,500 square feet to furniture displays. The Fifth District Court of Appeal ruled the ordinance was unconstitutional because it divided retailers into two classes and treated them separately. The separate treatment did not "bear a rational relationship" to the city's goal of preserving downtown (see CP&DR Legal Digest , May 2006). The decision came down only one week after the same court upheld a City of Turlock ordinance banning stores of more than 100,000 square feet from selling groceries. "Despite the court's attempt to distinguish the two decisions, it is difficult to reconcile the disparate holdings," Bingham McCutchen land use attorneys Dan Curtin, Cecily Talbert and Allison Krumbein wrote in an analysis for the Los Angeles Daily Journal . The case is Hernandez v. City of Hanford , No. S143287. The court rejected Wal-Mart's request to hear the Turlock case. A second case concerns three timber harvest plans in Tuolumne County that the state Department of Forestry and Fire Protection (CDF) approved for Sierra Pacific Industries. The Fifth District ruled that CDF's biological assessment was inadequate because the agency used the same "assessment area" when determining the planned logging's cumulative impact on the California spotted owl and the Pacific fisher. Assessment areas should be chosen separately based on the characteristics and needs of each species, the appellate court concluded. The court also ruled that CDF's study of the impacts of post-harvest herbicide use was inadequate. The state Supreme Court agreed to decide whether CDF did in fact correctly interpret and apply the Forest Practice Act and the Forest Practice Rules. The case is Ebbetts Pass Forest Watch v. Department of Forestry and Fire Protection, No. S143689. A third case concerns the formation of the Downtown Pomona Property and Business Improvement District. A property owner contended that a required public hearing was conducted at the wrong time and that the assessments are not proportional to the benefits received. The Second District Court of Appeal ruled against the property owner. The Supreme Court accepted the Pomona case but deferred action until the court decides a different case ( Silicon Valley Taxpayers' Assn., Inc. v. Santa Clara County Open Space Authority , No. S136468) that also concerns the justification for special assessments. The case is Dahms v. Downtown Pomona Property and Business Improvement District , No. S143165. Finally, the state's high court accepted a case involving a dispute between the City of Dinuba and Tulare County. The county had incorrectly coded for tax purposes certain parcels within Dinuba's redevelopment project area. The error shortchanged the city tax increment for four years. Instead, the money went to the county and nine other local government agencies. The county agreed to correct the error prospectively, but the Fifth District ordered the county to pay the city all of the underpaid tax increment (see CP&DR Legal Digest , May 2006). The question for the Supreme Court is whether state law provides the county immunity for its mistake. The case is City of Dinuba v. County of Tulare , No. S143326.

Colusa County In an advisory vote, the electorate made clear it opposes off-reservation Indian casinos in the county. A “yes” vote indicated opposition to casinos. Measure D, Yes: 82.4% Glenn County A proposal from the Grindstone Rancheria of Wintun-Wailaki Indians to build an off-reservation a casino along Interstate 5 near Willows failed to receive support in an advisory election. Measure F, No: 52.8% Kern County An initiative that bans the application of sewage sludge on farm fields won easily. About one-third of all sewage sludge — a byproduct of sewage treatment — in the state is now hauled to Kern County and spread on agricultural land. The county has tried for years to halt the practice because of public health and image concerns. Measure E, Yes: 83.3% Merced County A half-cent sales tax for transportation for 30 years failed to receive a super-majority vote. The tax would have raised an estimated $466 million for road improvements. Measure A, No: 37.2% (2/3 vote required) Monterey County A half-cent sales tax for transportation for 14 years failed. It would have raised an estimated $350 million for 16 highway improvement projects. Measure A, No: 43.3% (2/3 vote required) Napa County Voters widely rejected the Fair Pay for Public Benefit Act. The property rights initiative would have required the county to compensate a property owner “who suffers an established decrease in value of that property due to the impact of a new Napa County land use restriction.” Measure A, No: 63.6% A half-cent sales tax measure for transportation failed. The tax would have brought in about $530 million over 30 years. Measure H, No: 47.6% (2/3 vote required) Orange County A measure backed by the Orange County Board of Supervisors that prohibits the county from taking property via eminent domain so that the property may be used for private development gained widespread support. Measure A, Yes: 75.9% o . Voters narrowly approved a controversial initiative that requires general plan amendments and rezonings to be decided by voters. The initiative also establishes a height limit of 35 feet. Measure B, Yes: 51.1% San Bernardino County o . A measure backed by the City Council that amends a 1999 ballot measure prohibiting rezoning without voter approval won. The new measure gives the City Council the final say on general plan amendments and zoning. Measure N, Yes: 59.3% o . An initiative to give preference to San Bernardino County Indian tribes in development of a casino failed badly. The measure was an attempt to halt development of two Indian casinos proposed by two tribes from out of the area, a project that has the support of the city and the state. Measure H, No: 80.4% San Diego County o . Voters backed a charter amendment placed on the ballot by the City Council that prohibits the use of eminent domain to make property available for private development without voter approval. Proposition C, Yes: 73.8% o . A $596 million bond to fund construction, repair and improvements to Tri-City Medical Center and other medical facilities in Oceanside, Carlsbad and Vista barely failed to receive super-majority approval. The bond would have cost property owners about $23 per $100,000 of assessed value. Proposition F, No: 34.1% (2/3 vote required) San Francisco Voters overwhelmingly rejected an initiative aimed primarily at Laguna Honda Hospital admissions and care policies that also would have permitted development of nursing homes as conditional uses on land zoned for public use. Measure D, No: 73.6% Santa Barbara County A measure that would have carved a new county out of the existing county failed miserably. The proposed Mission County would have encompassed Santa Maria, Lompoc, Buellton and the Santa Ynez Valley. Measure H, entire county vote: No, 82.8% Measure H, within proposed county: No, 81.3% Santa Clara County A half-cent sales tax failed even though only a majority vote was required because the tax revenue was not officially designated for uses. Much of the revenue, however, likely would have gone for transit, primarily the $4.7 billion extension of BART from Fremont to San Jose. Measure A, No: 57.1% Parks continued to prove popular in the South Bay, as a 12-year extension of a special tax to fund parkland acquisition, development and maintenance was successful. The tax has been in place since 1972. The tax amounts to $14.20 for every $100K of assessed value. Measure B, Yes: 71.1% (2/3 vote required) o . Voters repealed a 1987 voter-approved zoning limitation that prohibits grocery stores at the Cochrane Plaza Shopping Center. A Target store now anchors the center, but Target plans to relocate. Measure H, Yes: 82.3% o . Voters said they do not want the city to sell the former Grace Methodist Church, which the city purchased four years ago for use as a new senior center. The senior center never relocated to the site, and the city proposed selling the 2.6-acre property. Sale opponents insist the church sold the property to the city at a discount and the property should remain in public hands. Measure J, No 75.6% Solano County A half-cent sales tax for transportation failed for the third time in four years. After relatively close votes in 2004 and 2002, this time the rejection was resounding. Measure H, No: 54.6% (2/3 vote required) Ventura County o . A 2,155-unit, 800-acre housing project was rejected. The City Council approved the Centex project last year, but opponents forced a referendum. Measure E6, No: 52.7% Yolo County o . An urban limit line initiative won approval. Supporters said the measure encourages downtown redevelopment, while opponents questioned the measure’s effectiveness and said it would induce growth on the city’s fringe. Measure A, Yes: 53.7%

Maybe it was while I was strolling amidst the mixed-use projects rising in the historic Pearl District. Or maybe it was while I was sipping coffee at a Powell’s outlet in the funky Hawthorne District. Or maybe it was while walking down the full sidewalks of Beaumont Village to a brewpub on a Tuesday evening. At some point during a recent visit to Portland, Oregon, I realized I wasn’t in Sacramento. The cities’ populations are roughly the same — Portland is about 570,000 people in a metro area of 2.1 million, Sacramento is about 470,000 in a metro area of 1.9 million — and both cities straddle one river while bordering a second. Both cities have an impressive number of mature trees. But I can’t think of much else they have in common. Portland is a city. Sacramento is a pretender. I’m not necessarily knocking Sacramento. OK, I am. But I don’t dislike the Big Tomato. I know it has charms. I lived there during the 1980s and continue to spend quite a bit of time there for work and socially. I’ve enjoyed watching the slow renaissance of my old midtown neighborhood into a modestly urbane district. But Portland has numerous districts all over town that top midtown Sacramento — districts where people fill the sidewalks, parks, eclectic shops and restaurants with life. And don’t get me started on downtown. There are more people out and about in downtown Portland on a Sunday afternoon than at any time in downtown Sacramento. They ride into the heart of Portland on the MAX light rail line by the tens of thousands to eat and drink, shop, go to the park or library, catch a minor league baseball game, or simply to hang out with friends. Ever walked down J Street in downtown Sacramento on Sunday afternoon? Right, no one has. There are a million big and small things that make Portland the city that Sacramento is not. Suffice to say that the late Jane Jacobs was right. A true city has a lot of unprogrammed commotion, a lot of people bumping into each other as they go about their lives. A city has vitality. After four days in Portland, I headed north on I-5 and stopped in the suburb of Vancouver, Washington. Although I had traveled only a few miles, I knew instantly that I wasn’t in Portland any longer. The streets were wide and fast, lined with cheesy commercial strips and huge parking lots. No one was on the sidewalk. I felt like I was in Sacramento.

Opponents of a school consolidation plan in a Santa Cruz County school district did not provide evidence showing that the consolidation was not exempt from California Environmental Quality Act review, the Sixth District Court of Appeal has ruled. The court ruled that the San Lorenzo Valley Unified School District did not violate procedural requirements of the California Environmental Quality Act (CEQA) because the law did not apply, and ruled that substantial evidence supported the district’s determination that school consolidation was categorically exempt from CEQA. At issue was the school district’s decision, made in April 2003, to close Redwood and Quail Hollow elementary schools, and transfer the students to Boulder Creek and San Lorenzo elementary schools. Four months after making the decision, the district, in response to public concerns, retained two consultants to evaluate environmental impacts of consolidation, including traffic. The district soon filed a formal notice of exemption from CEQA but also authorized preparation of an initial study of environmental effects. The study identified potential traffic and parking problems but concluded impacts would not exceed historic levels. A group called San Lorenzo Valley Community Advocates for Responsible Education (SLV CARE) sued the district on a number of grounds, including alleged CEQA violations. Santa Cruz County Superior Court Judge Irwin Joseph ruled for the school district on all claims. On appeal, the Sixth District upheld the lower court’s decision. The appellate panel first addressed the question of whether school consolidation was a “project” under CEQA. The court ruled it was a project with two components — closure of Redwood and Quail Hollow schools, and transfer of students from those schools to the Boulder Creek and San Lorenzo campuses. The court noted that in , (1982) 32 Cal.3d 779, the state Supreme Court ruled that the possibility that a school closure may have a significant effect “cannot be categorically rejected” and, therefore, was a project. As for the second component, the court again cited in finding that “transferring students may ‘change bus routes and schedules, and affect traffic patterns.’” After determining school consolidation was a project, the court turned to the issue of CEQA exemption. Section 15314 of the CEQA Guidelines provides an exemption to “minor additions to existing schools” when the addition “does not increase original student capacity by more than 25% or ten classrooms, whichever is less.” The court found that this exemption applied because the student transfers would give Boulder Creek and San Lorenzo schools, respectively, only 2.4% and 5% more students than original design capacities. Additionally, neither school would need 10 new classrooms. Consolidation opponents argued that the district did not follow the proper procedure for declaring the exemption because the district approved consolidation four months before filing the CEQA exemption. The court found that the district did nothing wrong. “CEQA has no application to exemption determinations made during an agency’s preliminary review, such as the one at issue here. Since CEQA does not apply, compliance with its procedural requirements is not required,” Justice Franklin Elia wrote. The question for the court then became whether consolidation warranted an exception to the exemption, meaning that CEQA would in fact apply. Section 15300.2 of the guidelines call for such an exception “when there is a reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances.” Consolidation opponents argued there were unusual circumstances. They said the consolidation would increase the potential for mold in classrooms, pose a geologic hazard because of a fault near Boulder Creek school, cause problems with failing septic systems, and cause traffic, parking and emergency access problems. The court rejected every contention: A study of mold cited by SLV CARE found that the level of mold spores in classrooms “is not considered significant.” A 1990 study of geologic dangers found that the nearby fault was no longer considered a potential earthquake source. The septic systems had been repaired. There was no evidence that traffic, circulation and parking issues were unusual. The court concluded, “There is no evidence of unusual circumstances setting this school consolidation apart from others in the exempt class.” The court further rejected SLV CARE’s arguments that the consolidation violated statutory provisions regarding the use of bond funds, that the district failed to provide public records and violated the state open meeting law, and that the district broke Education Code requirements mandating community involvement in decisions involving school closures and surplus property. The Case: , No. H028147, 06 C.D.O.S. 4490, 2006 DJDAR 6509. Filed May 26, 2006. The Lawyers: For SLV CARE: Gerald Bowden, Dawson, Passafuime & Bowden, (831) 438-1221. For the school district: Timothy Volkmann, Burton, Volkmann & Schmal, (831) 425-5023.

Voters appeared to be in both an anti-tax and an anti-growth mood in June. In recent years, voters have shown a willingness to approve sales tax increases to fund transportation projects. But in the June primary, voters in five counties said no to sale tax increases, with four of the five measures not even close to passing. The startling results have some transportation backers rethinking plans to place sales tax increases on the ballot in November. Meanwhile, voters showed a slow-growth bent, as they rejected a 2,100-unit housing development in Santa Paula, narrowly approved a far-reaching growth-control initiative in Yorba Linda, and overwhelmingly rejected a property rights initiative in Napa County. Voters also approved eminent domain limitations in Orange County and the City of Chula Vista. The only substantial victories for development interests occurred in San Bernardino County. Voters in the Town of Apple Valley approved an amendment to a 1999 initiative that had required voter approval for zoning changes. And in the City of Barstow, more than 80% of voters rejected an initiative that attempted to halt two casinos proposed by out-of-area Indian tribes. The rejection of sales taxes for transportation is likely to have the most far-reaching effects. Sales taxes in Merced, Monterey, Napa and Solano County all failed to receive the necessary two-thirds of the vote. In Santa Clara County, a general purpose sales tax that would have provided money for a BART extension to San Jose and county health facilities failed to receive even the needed majority vote. “There is a feeling of mistrust,” said Suisun City Mayor Jim Spering, who is chairman of the Solano Transportation Authority and member of the nine-county Metropolitan Transportation Commission board. “It was almost like an anti-incumbent vote. The state is in a very angry mood right now.” Shiloh Ballard, director of housing and community development for the Silicon Valley Leadership Group and a leader in the campaign for Santa Clara County’s Measure A, detected a similar sentiment. Polling about a week before the election showed support for local government sinking, she said. “People were feeling less confident in the county government generally,” Ballard said. “I kind of feel like we had the right campaign, but the wrong time. Timing can be everything.” Indeed, only 19 months earlier, voters approved new transportation sales taxes for transportation and sales tax extensions in seven counties. At that time, taxes failed in only four counties. One of the those four counties was Solano, but the tax received 64% backing. Voters in Santa Clara County have approved sales tax overrides four times since 1984. But this time, neither tax received even majority support, despite minimal opposition campaigns. “This was by far the biggest coalition of supporters we’ve ever organized,” said Ballard. “When you see that even library bonds lost, that makes you feel a little better,” she added, pointing to the defeat of state Proposition 81. Sarah West of the Self-Help Counties Coalition said there were numerous factors in the defeat of the sales tax measures. June elections are always tougher for spending items, and people had been hearing about the large state bond package coming in November, she noted. Plus, the two-thirds requirement is “incredibly difficult,” she said. According to West, as many as 10 counties are considering placing new transportation sales taxes or extensions of existing taxes on the ballot in November. Amador, Kern, Placer and Stanislaus counties are considering first-time taxes. Renewals could appear on the ballot in Fresno, Imperial, Madera, Orange, San Joaquin and Santa Barbara counties. The situation is most urgent in Fresno County, where a half-cent sales tax is scheduled to expire in 2007, and an attempt to extend it in 2002 received only 54% support. Spering, the 20-year mayor of Suisun City, recommended counties avoid even trying a sales tax in November. Voters’ lack of confidence is based on issues such as the state’s circumventing Proposition 42’s dedication of gasoline sales tax for transportation, and restoring confidence will take time, he said. “It has got to start at the state Legislature. The Legislature is going to have to restore the money for transportation and things people think they were supporting,” Spering said. “At the local level, we need more accountability.” The Central Solano Citizen/Taxpayer Group, which opposed the sales tax, sounded a similar theme. “Voters were pretty clear. We have already paid our share of taxes to maintain state and interstate highways,” John Takeuchi wrote on the group’s website. “Caltrans is responsible for the work. We will not be intimidated into taxing ourselves again for jobs that are not our responsibility.” In the growth wars, voters also demonstrated skepticism of their elected officials’ decisions. In the Ventura County city of Santa Paula, voters rejected development for the second time in three months, and the fourth time in six years. The latest project to lose was a proposal from Centex for 2,155 housing units and a smattering of retail space on about 800 acres in rugged Fagan Canyon, on the city’s northern end. Centex had agreed to set aside about 1,000 acres of open space. The City Council approved the project in late 2005, but the group We Care – Santa Paula qualified a referendum for the ballot. About 53% of voters rejected the project. Centex, which spent about $1.5 million in the campaign against the referendum after losing a lawsuit to keep the measure off the ballot, indicated it was through fighting Santa Paula’s activists. And city officials portrayed the vote — which occurred only two months after voters declined to enlarge the city’s growth boundary to accommodate a 495-home luxury housing project and golf resort in a different canyon outside of town — in stark terms. “In terms of another developer coming in to build in the canyons, I think this closes the door on that idea,” Councilwoman Mary Ann Krause told the . But Richard Main, who authored the referendum, rejected the characterization that We Care is a “no growth” group. “It’s not that we don’t want any houses or any growth. We just can’t seem to get the City Council and the city planners to look at growth with a discriminating eye,” Main said. Main, who helped draw the city’s growth boundary that voters approved in 2000, said Fagan Canyon was included within the boundary even though it is outside the city limits because it could provide for growth. But earlier studies had suggested about 450 units, he said. Next up for Santa Paula voters will be an initiative that would require voters to decide any project of more than 80 acres proposed at a density greater than allowed by the general plan — an initiative that a court ordered reluctant city officials to place on the ballot (see , June 2006). In the north Orange County city of Yorba Linda, voters narrowly approved the “Right to Vote on Land Use Amendments Initiative.” The measure requires a vote on any proposal to increase residential density, rezone residential land, rezone nonresidential land for more than 10 units per acre, or repeal any “planning policy document.” The initiative also establishes a citywide height limit of 35 feet and adds new noticing requirements. The initiative resulted from the city’s plans to redevelop the town center. Last fall, the city adopted a plan providing for 500 housing units and 560,000 square feet of retail development in a 60-acre redevelopment project area. Slow-growth advocates qualified a referendum of the town center plan, which the City Council then withdrew. The redevelopment opponents also advanced the right-to-vote initiative, and, even though the town center plan had been repealed, discontent apparently lingered. The initiative passed with 51% of the vote. In Napa County, a property rights initiative that mimicked Oregon’s Measure 37 was trounced, receiving barely more than one-third of the vote. The initiative would have required the county to compensate landowners for the economic impact of new regulations. It was authored by Napa Valley Land Stewards Alliance, a fairly new organization that fought a successful referendum campaign in 2004 to repeal a county stream setback ordinance (see , March 2004). Flush with that victory, the group pressed ahead with the “Fair Pay for Public Benefits Act.” However, Napa County has a history of slow-growth politics. In 1990, county voters approved Measure J, which reaffirmed agricultural land use designations and required a public vote to change them. Measure J was the subject of the landmark case , 9 Cal.4th 763 (see , April 1995), in which the state Supreme Court ruled that a general plan may be amended by initiative. Measure J remains a cornerstone in Napa County, and the Fair Pay initiative was viewed as a threat. In San Bernardino County, as usual, things were different. Voters in the Town of Apple Valley approved an amendment to a 1999 initiative that had given them final say over zoning changes. The Town Council contended that the 1999 initiative was focused on limiting residential development to two units per acre, and that the requirement for a subsequent election on zoning was superfluous. Officials said the requirement was hindering their ability to attract desired industrial development. Farther out in the desert, Barstow voters rejected an initiative that attempted to block a proposal for side-by-side Indian casinos. The Chemehuevi tribe backed the initiative, which would have established a casino development preference for tribes based in San Bernardino County. The tribe opposes a deal amongst the state, the city and two out of the area tribes — the Big Lagoon tribe from Humboldt County and the Los Coyotes band from San Diego County — for a major casino resort along Interstate 15 in Barstow.

My first impression of San Pedro occurred 15 years ago during a tour organized by the Los Angeles Conservancy. A middle-aged man, who had been a sailor during World War II, became animated as we stood beside the old city jail in the municipal building. He had been a teenage sailor when he went on furlough in San Pedro, then one of the toughest Navy towns on the West Coast. In one particularly notorious bar, men stationed on either side of the door both would wait for the next customer to walk through the door, and belt the unwary newcomer from both sides. After that hazing, the customer was free to nurse his throbbing jaw with a steady flow of stiff drinks. The protagonist of our story may have been new to booze. In any event, he found himself amid a sprawl of other drunken sailors in the basement of the municipal building. This was not an unusual occurrence in San Pedro, where the local authorities were familiar enough with Navy customs to release the men at dawn, so they could stumble their back to ships in time for roll call. The Navy has left San Pedro, and has been replaced by the second busiest port in the nation. A walk through many parts of this oceanfront district, however, gives the impression that little has changed here since the 1940s. Today, San Pedro is the Sad Sack of Los Angeles. Although much of the region’s wealth rolls through San Pedro on trucks and trains, they leave little in their wake but diesel fumes. Officially part of the City of Los Angeles – attached to the city by a ludicrously slender thread of land so that city officials are able to maintain control of the profitable port — San Pedro feels like a neglected stepchild of the wealthy city to the north. Not without reason: A walk through the district is a walk through working-class grit, combined with the weathered, seaside look that comes from constant exposure to salt air. True, there is a middle-class community, including some houses with commanding views of the ocean from tall bluffs. On the whole, however, there is little happening in San Pedro in the way of redevelopment. One of the best chances to improve the quality of life in San Pedro lies along the waterfront. The Port of Los Angeles has proposed and begun work on an eight-mile long stretch of San Pedro’s coastline as a waterfront walk, or, to put it in planning terms, a linear regional park. The appeal of walking along the waterfront is obvious; what is unusual here, perhaps, is that people in San Pedro may be accustomed to thinking of the tall bluffs as the waterfront, while much of the proposed new park lies below the bluffs, close to the shore. “There are no waterfront parks in the Los Angeles area, with the exception of Santa Monica,” said project architect Vaughan Davies. In a wealthy city, the typical pattern of developing an urban waterfront is for one or two developers to clear out the old industrial buildings and clean up the contaminated land. The cool air and pleasant view of water makes waterfront development desirable for hotels, restaurants and high-end housing. In a comparatively poor community like San Pedro, however, local government, rather than private investment, must provide the impetus for redeveloping the waterfront. In the design by architect Davies, who prepared it while a principal in the Los Angeles office of Ehrenkrantz, Eckstut & Kuhn, and continues to supervise the design from his current post as principal of EDAW’s Los Angeles office, the San Pedro waterfront becomes the mechanism to create a whole set of desirable uses (mostly) for the district. Here, some purists may balk at the colorful theming proposed to reposition drab little San Pedro. The oceanfront walk has been divided into several “themed” areas, each emphasizing the heritage of commercial fishing and shipping in San Pedro. The 22nd Street Marina attempts to bring San Pedro closer to the water, while a second area, the “outer harbor warehouse,” promises to provide a hotel, a fish market and a restaurant. Moving north we find the Ports o’ Call/San Pedro Slip, which will “preserve and renew the attraction of the authentic, working commercial fishing industry,” according to the project proponents. Further north still is the downtown harbor, providing a set of pedestrian linkages to downtown San Pedro, including attractions to lure downtown visitors, such as an expanded Maritime Museum. The northernmost area, known as the Piers District, will showcase the shipping industry. The Piers District is also the site of the World Cruise Center, a passenger facility that will be “complemented” by a new maritime building and what port officials describe as a “waterfront plaza.” In some ways, this optimistic plan makes itself an easy mark for cynical comments, which I don’t necessarily share. Purists, as mentioned before, will claim that the historic character of San Pedro is in danger of being obscured behind the marketing glitz; San Pedro is being marketed as a kind of imitation of itself. I dislike theming, (“This is Happiness Village here, and over there is Beautiful Vista cove.”) but I have come to understand that this is the way that designers and civic leaders provide a rationale for certain kinds of improvements. San Pedro is, in fact, a place of genuine historical interest, and if theming can remind us of that history without being overbearing, I will keep an open mind. There are worse things in the world. The most important thing is not to make San Pedro into a regional attraction—that may or may not ever happen—but to provide a breath of fresh air and a continuous waterfront to walk or bicycle to the residents of this long-neglected Navy town. Even some theming has to be better than the neglect that the district has endured, and it is certainly better than a sharp uppercut to the jaw.

WASHINGTON _ The Supreme Court's splintered decision on wetlands protection is likely to result in more litigation for federal agencies and new attention to California water boards’ expansive jurisdiction over the state’s waters. In a ruling issued in June, the justices divided three ways in a pair of cases brought by Michigan developers challenging the Army Corps of Engineers’ expansive claims of jurisdiction over wetlands remote from recognized waterways. A bloc of four conservatives led by Justice Antonin Scalia voted to significantly narrow the Corps’ power to regulate filling or clearing of wetlands, while four liberals voted to uphold the Corps’ current approach. Justice Anthony M. Kennedy cast the pivotal vote in an opinion only for himself that rejects the Corps’ existing regulations. Instead, Kennedy said the Corps has jurisdiction over a wetland only if it has “a significant nexus” to a navigable waterway. Under Supreme Court precedents, Kennedy’s opinion in should provide the controlling rule, but experts and advocates on all sides agreed the fractured ruling promises continuing uncertainty and litigation. “The decision introduced a lot more questions than answers,” said M. Reed Hopper, a principal attorney with the Sacramento-based Pacific Legal Foundation, who argued the case for the two developers before the high court. “There has to be more litigation.” Hopper called the ruling “a significant victory” because the upshot of Kennedy’s pivotal vote was to set aside the decision by the federal appeals court for Michigan upholding the Corps’ jurisdiction over the disputed wetlands in the cases. Environmental advocates acknowledged that the ruling leaves the Corps’ authority unsettled. After initial disappointment, however, some saw Kennedy’s opinion as a positive sign for environmental enforcement. “The bad sign is that it’s going to create enormous administrative headaches,” said Tim Searchinger, a senior attorney with Environmental Defense in Washington. “The good side is that Kennedy accepts in theory every argument that we’ve made for why wetlands adjacent to streams need to be protected.” In California, the State Water Resources Control Board sent out word on the day of the high court decision that the state’s all-encompassing Porter-Cologne water act may plug any gaps if federal authority is trimmed. “Our state legal definition of ‘waters of California’ is far more extensive and far more expansive than the federal definition,” said water board spokesman William Rukeyser, citing the act’s operative phrase. Like the federal Clean Water Act, state law requires a permit before filling or dredging wetlands. State and regional boards have essentially followed the Corps of Engineers’ lead on wetland issues, according to Kenneth Bogdan, a lawyer with the land use consulting firm of Jones & Stokes in Sacramento. Rukeyser said water boards may have to “polish up” the state’s procedures if federal jurisdiction changes. A building industry lawyer agreed on the broad reach of California law, but warned of likely new controversies if the state and regional water boards step into the breach left by receding federal jurisdiction. “I would not be surprised if there’s a legal challenge to the state board’s interpretation of their authority to regulate wetlands as expansively as they have articulated it to be,” said Paul Campos, general counsel for the Home Builders Association of Northern California. Regulations issued by the Corps of Engineers dating to 1977 define its jurisdiction to cover any wetlands “bordering, contiguous or neighboring” to a navigable waterway or tributary. The high court’s liberal bloc, led by Justice John Paul Stevens, said the regulation was a permissible interpretation of the Clean Water Act’s provisions. In his opinion, Scalia said the Corps’ definition went “beyond parody” to cover everything from storm drains and ditches to topographical features dry most of the time. As a narrower test, Scalia said a wetland should be covered only if has a “continuous surface connection” to a “relatively permanent, standing, or continuously flowing” body of water. In his opinion, Kennedy faulted Scalia for adding new tests not found in the statute, but chided Stevens for failing to limit the definition of “navigable waters” at all. Kennedy said his “significant nexus” test would be met “if the wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as navigable.” Significantly, Kennedy suggested that the wetlands in both of the Michigan cases might meet his test. In his opinion, Stevens noted the possibility that a wetland could be covered if it met either Kennedy’s or Scalia’s test. Barbara Vlamis, who has worked on California vernal pool issues extensively as executive director of the Butte Environmental Council, called Kennedy’s test “reasonable” while sharply criticizing Scalia’s definition as “narrow and myopic.” Protecting “ephemeral wetlands” is necessary to avoid “severely degraded watersheds and tributaries,” she said. Environmental experts as well as a government lawyer agreed, however, that Kennedy’s “significant nexus” test would mean more work for the Corps of Engineers to justify its jurisdiction on a case-by-case basis. “It’s going to be a mess in a discrete number of cases,” said Malcolm Stewart, an assistant solicitor general who helped write the government’s brief in the case. Bogdan noted that applying either of the tests poses special difficulties in California and other parts of the West, where water channels are often dry for parts of the year. “This is a land that’s filled with different kinds of wetland water resources where the hydrological connection to a traditional waterway is challenging,” he said. In his opinion, Kennedy, a native Californian, noted that the Los Angeles River “often looks more like a dry roadway than a river,” but has periodic releases of “powerful and destructive” volumes of water. For their part, critics of the Corps of Engineers’ approach saw the ruling as a message to the agency to cut back rather than try harder to claim jurisdiction over wetlands with tenuous connections to recognized waterway. “It’s time for the federal government to take a step back and heed the admonishment in the to defer to local and state regulators in their role on land use decisions,” Campos said. Kennedy in his opinion and two other justices in separate opinions urged the Corps to try to write rules defining its jurisdiction more precisely. Chief Justice John G. Roberts Jr., who voted with the conservative bloc, noted that the Corps had opened a rulemaking process following the court’s 2001 decision in , 531 U. S. 159, 168 (see , May 2001, , February 2001). That decision barred the agency’s jurisdiction over “isolated” wetlands. The rulemaking process “went nowhere,” Roberts said. Liberal Justice Stephen G. Breyer delivered a similar message. “Today’s opinions, taken together, call for the Army Corps of Engineers to write new regulations, and speedily so,” he said. The Case: , No. 04-1034, 06 C.D.O.S. 5260, 2006 DJDAR 7661. Filed June 19, 2006. The Lawyers: For Rapanos: M. Reed Hopper, Pacific Legal Foundation, (916) 419-7111. For the U.S.: Paul Clement, solicitor general, (212) 514-2203. Contributing Editor Kenneth Jost, a former editor of the , is Supreme Court editor for .

A little more than a year after hurricane Katrina turned New Orleans into a r eal-life Atlantis and focused scrutiny on flood-imperiled cities nationwide, California voters will be asked this fall to spend billions to prevent a Katrina-size disaster in the heart of their own state. But despite widespread agreement that something must be done about the aging system of levees, the $4.09 billion flood bond’s prospects on November 7 seem uncertain at best. For one thing, voters appear to be in a tight-fisted mood. Offered relatively painless opportunities to spend money on two feel-good programs — borrowing to build libraries and taxing rich people to finance pre-school — voters on June 6 rejected both propositions by wide margins. The November general election could be an even more troubling environment for spending proposals. The flood measure is one of five major bonds on the November ballot. The collective price tag is a record-setting $42 billion, a deluge of prospective borrowing big enough to daunt even the most spendthrift voter. The money would finance everything from school and road construction to low-income housing, water projects, and habitat conservation. The flood-protection bond also is carrying some extra political baggage. Levee repairs financed by the bond proceeds would be largely exempted from the rigorous analysis requirements of the California Environmental Quality Act (CEQA). That exemption is contained not in the bond bill, but in separate legislation, AB 1039, by Assembly Speaker Fabian Nunez (D-Los Angeles) and signed by the governor on May 19. That legislation also extends the CEQA exemption to seismic retrofit work conducted with the proceeds of a highway bond also on the November ballot. Water and flood-protection districts have long sought CEQA exemptions for their favorite projects, and appending such a clause to the bond might have posed a thorny dilemma for environmental advocates. Flood projects typically have the potential to disrupt riparian and aquatic ecosystems, some of the most vulnerable and compromised elements of California’s natural heritage. But actively campaigning against the bond measure because of the associated CEQA loophole would put die-hard environmentalists in the position of arguing that fish and trees are more important than farmers and homeowners. Environmental organizations so far have declined to take issue with the CEQA exemption. The bill was tailored to apply only to repairs of existing structures, not their enlargement or relocation, minimizing its effect. The Sierra Club, “concentrated on trying to insure that there would be no CEQA jailbreaks in the bonds, and it appears there were not,” state Legislative Director Bill Allayaud wrote to the group’s members, The flood bond’s more significant potential liability is its conflation of two related but distinctly different threats: possible collapse of the aging network of farm levees in the Sacramento-San Joaquin River Delta, and inadequate protection for urbanizing floodplains in and around Sacramento. The bond measure mashes them together and throws wads of money at the whole mess, leaving the precise allocation among competing ideas and priorities unspecified and subject to future negotiations between the Legislature and the governor. Yet the two problems have very different origins, involve very different sets of public-policy decisions, and have different long-term solutions. The threat in the Delta clearly has statewide significance. Some 1,100 miles of earthen levees form a precarious barrier protecting land that is generally below sea level. The Department of Water Resources (DWR) last year concluded that a moderate earthquake on one of the many seismic faults west of the Delta would cause at least 30 breaks. That would flood 3,000 homes and 85,000 acres of cropland, close the Port of Stockton and two highways, disrupt electricity and natural-gas supplies, and send 300 billion gallons of sea water toward the pumps supplying drinking and irrigation water to two-thirds of California through the Central Valley Project and State Water Project. The other Central Valley flooding issue pertains to urban development in the floodplains of the Sacramento and American rivers. Multiple dams and 1,600 miles of levees protect about 400,000 people in and around Sacramento, which faces the highest risk of flooding of any major American city, according to the Sacramento Area Flood Control Agency (SAFCA). The agency has spent more than $300 million during the past 10 years repairing, strengthening and raising levees, and estimates it needs to spend twice that much again. However, it is hard to make the argument that taxpayers statewide have an obligation to defend floodplain development in the Sacramento region. Supporters of the flood bond may find it difficult to craft a clear campaign pitch for a measure that makes no meaningful distinction between the two types of threats. The fact that development continues unabated in the flood prone Central Valley may not help the campaign, either. According to an analysis of regional development plans conducted in Katrina’s wake by the , at least 115,000 new homes are in the pipeline for land in the valley that is protected by levees and has been flooded repeatedly in the past. The total, according to the newspaper’s analysis, could be as high as 170,000 units, but no one really knows because no single agency keeps track. “Levees are piles of dirt,” Jonas Minton, a former deputy director at DWR now with the Planning and Conservation League, told the . “They have a tendency to fail. If people are living behind levees, many feet below the water surface, it is only a matter of time ’til some of them flood.” The flood bond does contain one unambiguous objective: It would commit the state to developing a formal Central Valley flood plan to replace the mishmash of statutes and structures that have developed over the past century without any real coordination or oversight. According to Alf Brandt, a consultant to the Assembly Committee on Water, Parks and Wildlife, this comprehensive approach is a direct response to the landmark decision in (113 Cal.App.4th 998; see , January 2004). In , the Third District Court of Appeal concluded that the state’s acceptance of substandard levees made it legally and financially responsible for the failure of those structures even if it had nothing to do with building or maintaining them. Contacts: Alf Brandt, Assembly Committee on Water, Parks and Wildlife, (916) 319-2096. Bill Allayaud, Sierra Club, (916) 557-1100. Disaster Preparedness and Flood Prevention Bond Act of 2006: http://leginfo.ca.gov/pub/bill/asm/ab_0101-0150/ab_140_bill_20060519_chaptered.html

A state District Court of Appeal has rejected a property owner’s contention that design review permits for two houses in San Mateo County were “deemed approved” because the county failed to act on his applications within 60 days. The court ruled that the permits could not be deemed approved because neither the county nor the applicant had notified the public that deemed approval was a possibility. The case involved an interpretation of provisions in the Permit Streamlining Act that give an agency 60 days to approve or deny a project that is exempt from environmental review. The question for the court was whether “a statement that the project shall be deemed approved if the permitting agency has not acted within 60 days” must be included in the public notice. A unanimous three-judge panel of the First District, Division Five, answered affirmatively. And because such a statement did not appear in the county’s public notice, the project could not be deemed approved, the court ruled. In early 1999, Thomas Mahon applied to San Mateo County for design review to build two houses on adjacent lots on Second Street in the unincorporated beach town of Montara. County planners determined that the projects were exempt from environmental review under the California Environmental Quality Act and conditionally approved the permits within the 60-day period. However, in October 1999, planners concluded that Mahon’s neighboring property owners did not receive notice of the design review permit applications as required by state law and county policy. The county then mailed notices to property owners within 300 feet of Mahon’s property and posted a notice on the project site. The notices did not state that the permits would be deemed approved if the county failed to act within a certain time period. Soon thereafter, objections came pouring in from neighbors and the Mid-Coast Community Council. Opponents complained that the proposed houses were too large and did not conform to county design standards. One year later — in October 2000 — county planners conditionally approved one of the houses. Neighbors appealed, and the county Planning Commission upheld the appeal. Mahon then appealed to the Board of Supervisors, which in August 2001 sent the application back to the Planning Commission for consideration of a new design. Mahon submitted revised plans, but apparently nothing happened until early 2004, when Mahon hired legal counsel. Mahon’s attorney advised the county that the permits were deemed approved because the county had failed to act within 60 days of the Board of Supervisors’ decision to remand the matter, or within 60 days of Mahon’s submission of revised plans in July 2002. The county rejected the “deemed approved” contention, and the Planning Commission then denied design review permits for both houses. Mahon sued the county, arguing that the permits were deemed approved. San Mateo County Superior Court Judge Robert Foiles ruled for the county, and the First District affirmed the decision. The First District found no published case that addressed the question at hand. “In sum,” Presiding Justice Barbara Jones wrote for the court, “we are confronted with the following: (1) a project cannot be deemed approved without ‘public notice required by law,’ but § 65956 does not define what ‘public notice required by law’ means; (2) the statute specifies an notice must advise that the application will be deemed approved unless acted upon within the statutory time period, but the statute does not specify what is to be included when the agency gives notice.” Mahon argued that because the agency provided the public notice, the notice need not include a warning about deemed approval. Mahon also contended that he did not have to provide public notice because the county’s notice was adequate. The court disagreed, holding, “ e see no reason why ‘public notice required by law’ would mean one thing if notice is provided by the agency and another if provided by the applicant.” Mahon argued that if the county was required to provide notice of the possibility of deemed approval, the county could rig the process — and thus avoid the mandate of the Permit Streamlining Act — by never providing such notice. Again, the court disagreed, noting that the applicant himself had the ability to provide the public notice triggering the deemed approval provision. “If an applicant wishes to avail himself of deemed approval, the statute requires him initially to advise the agency that he intends to do so,” Justice Jones wrote. “The agency may then be spurred to provide the ‘public notice required by law’ itself, relieving the applicant of this chore. But even if it does not, the applicant can provide the public notice and preserve the potential for deemed approval. This process serves the purpose of the Act to avoid protracted delays in processing permit applications while protecting the interests of neighboring landowners.” After concluding that the notice was inadequate under the statute, the court declined to consider whether adjoining landowners have a distinct due process right to notice of the potential for deemed approval. The Case: , No. A110171, 06 C.D.O.S. 4156, 2006 DJDAR 6065. Filed May 18, 2006. The Lawyers; For Mahon: Ron Zumbrun, (916) 486-5900. For the county: Kimberly Marlow, county counsel’s office, (650) 363-4250.

So, the smart growthers have their candidate for governor. No statewide public figure in California has been more closely identified with “smart growth” and “New Urbanism” than Phil Angelides. This affiliation didn’t matter in the Democratic primary. And it probably won’t matter in the general election, either. But it will matter if Angelides is elected. The Democratic nominee’s election is not the current betting in most quarters, of course. Angelides – currently the state treasurer – is the anti-Schwarzenegger, a skinny guy who is a bit awkward on the stump, and it’s hard to imagine him defeating the Governator. But 2006 is shaping up as a Democratic year. Schwarzenegger is still recovering from last year’s political wounds. And the anti-Schwarzenegger approach just might work. After all, California has a long history of electing boring career politicians (Deukmejian, Wilson, Davis) running against the rich and famous (Mike Curb, Dianne Feinstein, Al Checci). So it is worth thinking about what Angelides the governor would be like for planning and development. There is little doubt that Angelides, if elected, would pursue an aggressive smart growth agenda. The big question is whether he could move it successfully. Partly, of course, that will depend on how much political capital he will have if he wins. But it will also depend on factors beyond his control – most importantly, the infrastructure bonds and the economy. If the infrastructure bonds pass, then moving a smart growth agenda will require Angelides to expend a lot political capital on the distribution rules for the bond money. If the economy tanks, as happened to Wilson in 1991, then no one will care what his approach to growth is. But the big challenge will be the California Environmental Quality Act (CEQA), whose needle of reform Angelides will have to thread to succeed. Angelides’ bona fides as a true believer in smart growth and New Urbanism are real. His primary opponent, Controller Steve Westly, depicted Angelides as an anti-environment developer — and his longtime connection to major Sacramento builder Angelo Tsakapoulos (who really does have the record of an anti-environment developer) didn’t help. Although Angelides has been a greenfield developer, however, he has not been a standard suburban sprawl developer. He was the developer of California’s first New Urbanist project – Laguna West in Elk Grove, designed by Calthorpe & Associates during the early 1990s. So immersed was Angelides in New Urbanism that during the 1992 presidential campaign, he arranged to have Bill Clinton speak at the Laguna West Town Center and turned his Clinton introduction into a lecture on the virtues of New Urbanism. Clinton, characteristically, won the crowd over (not too difficult after the droning introduction) by making a joke about New Urbanism. Since his election as treasurer in 1998, Angelides has been a regular on the smart growth speakers circuit – and has learned to use the peculiar powers of the office he holds to promote that agenda. California’s treasurer is powerful because the office was the final political resting place of the brilliant Jess Unruh, who spent much of the 1970s and ’80s setting up little-known but powerful committees controlled by the treasurer’s office. As a board member of the California Public Employment Retirement System, Angelides has promoted not only socially responsible investment but also infill development, and as a result PERS now has considerable investments in infill projects for the first time. As chair of the Low-Income Housing Tax Credit Committee, Angelides has changed the scoring system for projects to include proximity to transit stops and other smart growth ideas. As a result, “tax credit developers” have had to become infill and transit-oriented developers as well. Angelides’ approach has been shaped partly by the powers of his office, which deal with finance. But his approach was also shaped by the policies of the most successful state-level smart growth politician of the last decade, former Gov. Parris Glendening of Maryland. Eschewing a regulatory approach as too politically risky, Glendening instead focused on the state budget, changing spending priorities to encourage infill development and greenfield preservation. If elected, Angelides can be expected to take the same approach – perhaps relying on AB 857, the mostly ignored 2002 law that requires all state actions to promote infill development, compact greenfield development, and protection of agricultural and open space land. If the $37 billion in infrastructure bonds passes, it will give him a huge smart growth club. But it’s not at all clear that he will have enough political capture to wield that club. And even then, he won’t be out of the woods because inevitably he’ll get sucked into the CEQA reform battle. The bonds cut both ways for smart growth. The housing bond has $850 million to support transit-oriented housing, and the parks bond also has some smart growth rhetoric. But the big kahuna on the ballot is the $20 billion transportation bond. That bond is tilted toward roads rather than transit. And historically it’s been impossible for even the strongest politicians to muscle transportation money away from the pork barrel crowd and use it to shape growth. So the transportation bond is just too big to ignore, but Angelides’ chances for meaningful change would be fairly slim – especially if the bonds got more votes than he did, or (as seems likely) growth patterns are not much of an issue in the campaign. But that would be only part of the Angelides dilemma, because if he truly wants to promote infill development, he will have to tackle CEQA. Most experts agree that CEQA is one of the biggest obstacles to infill development. Nearly all infill projects have to go through a CEQA analysis, meaning they lead developers down the familiar path of uncertainty in terms of time and money. And because most infill occurs in congested urban neighborhoods, CEQA highlights infill’s weak spot: traffic. So far, reformers have been able to only nibble around the edges – a little-used exemption here, a juice bill for Jerry Brown in downtown Oakland there. In theory, Angelides could create the perfect Nixon-goes-to-China scenario on CEQA. Only a liberal Democrat with a loyal environmentalist following could take on CEQA and streamline review for infill projects. In seeking to streamline CEQA for infill, however, Angelides would inevitably get pinned down between warring factions. On the one hand are the environmentalists, who view CEQA not only as a tool of environmental protection but also as a tool of citizen empowerment – and who also believe that urban residents are among those citizens who need the most empowering. On the other hand are the homebuilders, who believe that CEQA reform is too important to limit to infill situations, especially because – as Angelides himself would be hard-pressed to refute – most new housing development in the state will still occurs on greenfield sites. More than one American governor has been cut down in the crossfire over state-level regulations on growth – which, in California, is what CEQA amounts to. If Gov. Angelides had only to worry about spending money in a smart growth way, he would make some progress and he could call that a victory. But he needs a win on the CEQA front as well. Unless he can persuade the enviros that an infill exemption is a good thing – and then persuade the builders that it’s better than nothing – he won’t succeed as California’s smart growth governor.