The future of the Governor's Office of Planning and Research appears very much in doubt. On Wednesday, the Legislature's Conference Committee on the Budget recommended eliminating OPR only hours after Gov. Schwarzenegger called OPR "a total waste." The Los Angeles Times quotes the governor saying, "The Office of Planning and Research ought to be about planning and research to come up with great policy answers, which this office doesn't do." I'll grant that OPR is not all it could be. But whose fault is that, Mr. Governor? Starting with Gray Davis and continuing with Schwarzenegger, the OPR director's position has become a political patronage appointment. Both governors passed over highly qualified policy experts in favor of political cronies. A political crony's primary task is covering the boss's ass, not pressing forward with policies that could be politically sensitive.   The Office of Planning and Research has some smart and very dedicated people on its chronically short staff. Give them the leadership, freedom and resources to develop "great policy answers," and they just might do so. - Paul Shigley

The committee charged with recommending how the Air Resources Board should establish greenhouse gas emissions reduction targets under AB 32 and SB 375 spent much of its first half dozen meetings talking in about the technical details of measuring emissions and modeling for future emissions. That changed on Wednesday, June 3, when Regional Targets Advisory Committee (RTAC) member Richard Katz said he'd had enough. Can't we get on with the policy discussion, asked Katz, a former assemblyman who represents the Los Angeles County Metropolitan Transportation Commission on the RTAC. Other RTAC members – including Los Angeles Planning Commissioner Mike Woo and San Diego Association of Governments Executive Director Gary Gallegos – agreed during something of an impromptu roundtable discussion. Woo said it was time to "reclaim the direction of the committee." The Air Resources Board is in the midst of implementing AB 32, the three-year-old law that requires California to reduce greenhouse gas (GHG) emissions to 1990 levels by 2020, and to 80% below 1990 levels by 2050. The Air Resources Board has decided that a small portion of the GHG reduction will be attributable to land use changes, but the board has deferred the specifics to the SB 375 process . Passed last year, SB 375 requires the state to establish GHG emissions reduction targets for each of the state's 17 regions, and requires the metropolitan planning organization within each region to adopt land use planning and transportation strategies that will meet the target. To help figure out what the targets should be, the board appointed the 21-member advisory committee earlier this year to recommend factors and methodologies the board should consider. Despite the call for diving into policy issues during the most recent RTAC meeting, questions of how to measure emissions and ways to predict how policies will affect future emissions remain. Barry Wallerstein, executive officer of the South Coast Air Quality Management District, said a summary of regional scenario data (essentially a collection of models) that was provided for the June 3 meeting proved that the various models employed by different MPOs are too inconsistent to be of use. "The existing models don't provide a common yardstick by which we can measure progress toward the targets," Wallerstein said. "I think that's a major problem." Shari Libiki, a consultant and Stanford environmental engineering professor, insisted the panel could not recommend policy without better data. "We don't understand our baseline very well," Libiki said. "I understand that people are frustrated with talking about models." But, she added, the models will affect the committee's recommendations. The committee made no recommendations at the June 3 meeting, but several of the committee members' priorities started to shine through. Great Valley Center founder Carol Whiteside encouraged the committee to be  "bolder" and not settle for "tinkering at the margins" of land use and transportation policy. A $1 per gallon gas tax would generate a great deal of new revenue and help move the state toward its GHG reduction goals, she said. Affordable housing attorney Michael Rawson and University of Southern California professor Manuel Pastor Jr. pressed for the inclusion of social equity as part of a policy package. Any policy that results in displacement of low-income people or disruption of communities should not be considered "feasible," argued Rawson. Amanda Eaken, of the Natural Resources Defense Council, said the committee should ensure that local governments have the tools to respond to changing demographics and new housing products – namely, housing other than single-family subdivisions. Bay Area Metropolitan Transportation Commission Executive Director Steve Heminger expressed what appeared to be a somewhat common observation, and a frustration. "2020 is really soon," Heminger said in reference to the AB 32 deadline for reducing GHG emissions to 1990 levels. "But land use strategies are slow acting, and they are even slower in regions that are growing slowly. And they are slower yet in regions in recession." "We are working on this subject at a time when our Legislature is on the verge of blowing the state up," Heminger continued, noting that all funding for transit is likely to be lost. "They are doing everything they can to encourage more driving." So, how much should the current recession and state budget crisis factor into the committee's recommendations? A lot, said Katz, who argued for GHG targets "grounded in real world achievability." Not so much, said Stuart Cohen, of advocacy group TransForm. "We should not use the existing funding situation as the reason for low targets," he said. The committee has only four meeting scheduled before it makes a recommendation to the Air Resources Board. Those should be lively – and very long – sessions. – Paul Shigley

There is no better example of the conundrum in which Gov. Schwarzenegger and all Californians find ourselves than the controversial oil drilling deal off Santa Barbara County. On the one hand, Schwarzenegger and the state are world leaders in public policy to reduce energy consumption and promote renewable energy development. On the other hand, we're broke – and a deal allowing Plains Exploration Petroleum (PXP) to extract oil from state waters near Vandenberg Air Force Base would provide the state government roughly $200 million a year for a decade. Right now, Schwarzenegger says do the deal. Lt. Gov. John Garamendi and State Controller John Chiang say no way. A little background. Last year, a collection of environmental organizations lead by the Santa Barbara-based Environmental Defense Center announced they had cut a deal with PXP. Under the Tranquillon Ridge plan, the Texas-based company would use an existing platform located in federal waters to extract petroleum underlying adjacent state waters (the state controls waters within 3 miles of the coast). In exchange, PXP would shut down the platform and three others in the Santa Barbara Channel by 2022, donate 4,000 acres of land for public use, and pay the state about $2 billion in royalties. In January of this year, the State Lands Commission, composed of the lieutenant governor, the controller and the director of finance, voted 2-1 to prohibit the drilling. The Commission – well, Garamendi and Chiang – said the threat of an oil spill was too great, complained about the private nature of the deal, claimed that it was not really enforceable, and pointed out that the federal government could override the agreement and prevent the planned oil drilling platform decommissioning. Considering that the State Lands Commission has jurisdiction over state waters, the 2-1 vote appeared to be the end of the Tranquillon Ridge deal. But did I mention that the state is broke? The governor's May budget revise included authority for Finance Director Mike Genest to supercede the State Lands Commission and approve the Tranquillon Ridge oil drilling lease. As you might imagine, this move did not set well with Garamendi and Chiang. At a State Lands Commission hearing in Santa Monica on Monday, they voted 2-0 for a resolution urging the Legislature to reject the "end-run around the Commission's decision regarding the Tranquillon Ridge lease." (The panel's third member, Deputy Finance Director Tom Sheehy, who had defended the governor's plan, left the meeting early because of a family emergency.) At the hearing, environmental groups that had supported the quid pro quo with PXP began backing away , saying they don't want to circumvent the State Lands Commission. This hot potato is now in the hands of the Legislature, which already has more scalding spuds than it can juggle. An additional $200 million in annual revenue, even if it doesn't start flowing for a year or two, is awfully hard pass up in the face of eliminating health care for a million children and closing 200 state parks. Back to that other hand: If California approves the first oil drilling leases in state waters since 1969, how seriously are we to take the state's commitment to the not-always-convenient fight against climate change?     Cities and counties – wondering what SB 375 is going to do to their land use authority – are watching closely. - Paul Shigley

Opponents of the proposed construction of two houses on a coastal bluff in San Clemente may pursue their lawsuit to overturn the California Coastal Commission's approval of the projects, even though the suit was filed after a statute of limitations had ostensibly expired, the Fourth District Court of Appeal has ruled. Under the California Coastal Act, opponents of a commission ruling have 60 days from the date of a decision to file legal action. The San Clemente neighbors seemingly missed that deadline. They successfully argued, however, that their suit was timely not under the Coastal Act, but under a section of the California Environmental Quality Act (CEQA) that authorizes the commission's regulatory program. The properties in question are two adjacent lots in an undeveloped, nine-parcel stretch on the city's coastal bluff. The vacant land has afforded the public an unobstructed view of the ocean and access to the beach for years. In November 2007, the Coastal Commission approved development permits that allowed the properties' owners to build multistory, single-family houses on the lots. The commission conditioned its approval on the property owners' signing a memorandum of understanding (MOU) with the owners of five other undeveloped lots to provide for view corridors and pedestrian beach access. While the commission approved the permits on November 14, 2007, it did not file the requisite notice of approval with the Natural Resources Agency until December 27. On January 28, the neighbors sued the commission, contending that the coastal panel had failed to adequately evaluate project alternatives; used the MOU to improperly defer mitigation; and violated procedural requirements by providing late notice of staff reports and failing to respond to written comments from the project opponents. In response, the Commission and the two property owners contended the lawsuit was filed after the 60-day deadline in the Coastal Act. Orange County Superior Court Judge Thierry Patrick Colaw agreed and dismissed the neighbors' suit. The Coastal Commission does not have to strictly abide by CEQA rules. Instead, it uses a certified regulatory equivalent of the CEQA process authorized by the act in Public Resources Code § 21080.5. Subdivision (g) of that section establishes a 30-day statute of limitations for legal action, and the appellate court ruled that the clock for legal action started ticking on December 27 when the commission filed the notice of permit approval with the Natural Resources Agency. "If § 21080.5, subdivision (g), applies, plaintiff's filing of the petition on Monday, January 28, 2008, was timely," Justice William Rylaarsdam wrote for the court. The commission and property owners argued that this CEQA provision and the Coastal Act were in conflict because of their differing statutes of limitations, and in such a case, the Coastal Act should prevail. They had a state Supreme Court ruling on their side. In Sierra Club v. California Coastal Com. , (2005) 35 Cal.4th 839, the court ruled that when CEQA and the Coastal Act conflict, the Coastal Act controls (see CP&DR Legal Digest , June 2005 ). The appellate court, however, decided that the different statutes may be reconciled. The relevant Coastal Act provision is Public Resources Code § 30801, which applies to "any decision" by the Commission, while § 21080.5, subdivision (g), covers any state agency decision prepared pursuant to the same section. "Thus," Rylaarsdam wrote, "§ 21080.5 governs a limited type of attack on Commission's rulings issued under the certified regulatory program exemption." The lawsuit filed by the group of San Clemente neighbors was precisely this sort of attack because it challenged the Commission's range of alternatives, mitigation measures and public review process, the court ruled. The Fourth District Court of Appeal also pointed out that the question of legal deadlines would not have arisen if the Commission had filed its decision with the Natural Resources Agency promptly. The case now returns to Superior Court for further proceedings. The Case: Strother v. California Coastal Commission , No. G040745, 09 C.D.O.S. 5407. Filed April 30, 2009. The Lawyers: For the project opponents: James Geocaris, Lewis, Brisbois, Bisgaard & Smith, (714) 545-9200. For the Commission: Christina Bull Arndt, attorney general's office (213) 897-8964. For the property owners: John Flynn III, Nossaman, (949) 833-7800.

The state will appeal a Superior Court decision blocking the state from shifting $350 million of tax increment revenue from redevelopment agencies to schools In the midst of the state's larger budget crisis, the amount at issue in the litigation suddenly appears piddling. Still, the case, if pursued, could be important, especially to redevelopment agencies. Attorneys for the Department of Finance filed the notice of appeal earlier this week. The notice does not contain any arguments, and state officials have declined to discuss their legal strategy. The state did not request a "stay" of the April 30 decision; hence, redevelopment agencies are off the hook for now. It's entirely possible the state is simply keeping legal options alive while other things develop in the background, including a likely legislative remedy. As we reported earlier , Judge Lloyd Connolly based his ruling entirely on the Legislature's findings and declarations in support of the money shift. A move is afoot to draft new findings and declarations that could withstand Connolly's scrutiny, renewing the shift. Don't forget, though, the California Redevelopment Association has other legal arguments against the shift, including the contention that it would unconstitutionally interfere with contracts between redevelopment agencies and bondholders. Of course, the $350 million of redevelopment money amounts to only 1.44% of the state's projected $24.3 billion budget gap for the 2009-10 fiscal year. The two-house Conference Committee on the Budget began tackling the mess this week, and I have to say I do not remember the mood in Sacramento ever being more somber. Proposals that in past years might have served as political threats – emptying some prisons, cutting off health care for a million children, eliminating job training and college grants, shortening the school year, closing the majority of state parks – are being taken seriously as budget-balancing ideas. They're no longer talking about quality of life issues at the Capitol, they're talking about life, death and the most basic public services. The League of California Cities is organizing its "budget action day" on Wednesday, June 3, during which local government officials will lobby lawmakers not to increase local government responsibilities while the state simultaneously borrows $2 billion in local property taxes and outright takes gas tax revenues locals have been receiving. However, local officials – including Los Angeles Mayor and former Assembly Speaker Antonio Villaraigosa – made their pitch all this week and appear to have gotten nowhere.   - Paul Shigley

A state appellate court has upheld the City of Los Angeles's refusal to grant a conditional use permit for the sale and on-site consumption of alcohol at an adult cabaret. SP Star Enterprises, which has certificate-of-occupancy permits to operate the nude entertainment club, contended that the city's decision amounted to an unconstitutional infringement on its free speech. But the court ruled that the decision to deny a permit strictly concerned alcohol and did not prohibit the expression of protected speech. Star's facility, which is permitted to seat up to 177 patrons, is located in a converted industrial building at Ducommon and Vignes streets in the burgeoning Arts District north of Little Tokyo. The city-issued building and occupancy permits allow Star to operate the club between 11 a.m. and 2 a.m. daily. Star, which holds a franchise for a Penthouse adult cabaret, applied for a conditional use permit (CUP) for the sale and on-site consumption of alcohol at the club, and a city zoning administrator granted the CUP for one year. The Los Angeles Hompa Hongwanji Buddhist Temple and Fukui Mortuary, which are located near the club, appealed the decision to the Central Area Planning Commission (APC). A temple representative contended that the CUP would result in an unsafe environment for the families and children who attend day care and events at the temple. The mortuary owner argued the sale of alcohol at the club would disrupt services and upset grieving people. Other foes of the decision to grant the club a CUP also surfaced. Representatives of two Los Angeles city councilmembers, as well as the Central City East Association, argued that the alcohol permit would set back the area's revitalization drive. Two Los Angeles Police Department lieutenants said the sale and consumption of alcohol at the club had the potential to increase crime in the area. Star's attorney countered that the company had invested more than $1 million in the club and that its agreement with Penthouse required that the facility be upscale. He added that the club is in a concrete box that would emit no noise, that there is adequate parking on-site and that security would be provided at all times. The attorney also noted that the mortuary is 518 feet from the club, while the temple is more than 1,000 feet away. In reversing the city zoning administrator's decision to grant the CUP, the Central Area Planning Commission (APC) found that the sale and consumption of alcohol at the club would not be desirable to the public convenience and welfare, would be detrimental to the character of the community and would not be in harmony with the area's general plan. The vote was 3-1 to deny the permit. Star sued the APC, arguing that the CUP request must be reviewed under the "strict scrutiny" standard because Star features constitutionally protected expression – nude dancing. Los Angeles County Superior Court Judge Dzintra Janavs disagreed, finding the city's decision to deny the alcohol permit was permissible no matter what standard of review applied. In its appeal, Star continued to argue that the APC's decision was an unconstitutional restraint of protected speech that a court must review independently. But a three-judge panel of the Second District Court of Appeal, Division Three, said the issue was alcohol – not nude dancing. "It is clear that an initial application for a conditional use permit to sell alcohol for on-site consumption does not involve a fundamental vested right or Star's right of free speech," Presiding Justice Joan Klein wrote for the court, citing Yu v. Alcoholic Bev. etc. Appeals Bd. , (1992) 3 Cal.App.4th 286, 296. "On the contrary, it is generally accepted that ‘the liquor business is fraught with danger to the community, and may therefore be either entirely prohibited, or permitted under such conditions as are prescribed by the regulatory agency, which has broad power in this respect.'" Because the issue did not involve the protected activity of nude dancing, the Second District panel of judges held, the lower court properly applied the more deferential "substantial evidence test," rather than the independent-judgment standard and the strict-scrutiny test. The appellate court found that the APC's references to "general welfare," general plan "harmony" and "proper" uses were not overly vague, as Star had contended, and that the club's proximity to a day-care school was an appropriate factor to weigh in deciding the CUP request. The commission's consideration of crime and alcohol in the broader downtown area was also proper, and the testimony of neighbors and the police regarding neighborhood character and integrity constituted substantial evidence, the court ruled. The Case: SP Star Enterprises, Inc. v. City of Los Angeles , No. B204045, 2009 DJDAR 6152. Filed April 28, 2009. The Lawyers: For Star: Stuart Miller, Wellman & Warren, (949) 580-3737. For the city: Tayo Popoola, city attorney's office, (213) 978-8068.

I was studying the Beach and Edinger Corridors Specific Plan for Huntington Beach the other night. One of the chief goals of the specific plan is to remake Beach and Edinger into first-rate streets worthy of this Orange County community of 200,000 people, replacing the messy, strip-like conditions that currently exist on these major thoroughfares. With the deadline for my column looming, I fought to stay awake, but soon fell asleep. With my feverish brain preoccupied with streets, it should have been no surprise that I dreamt of Baron Eugene-Georges de Haussmann, who during the 1860s designed � and ruthlessly pushed through � a set of magnificent boulevards in Paris, including the widening of the Champs Elysees . � I quickly showed M. le Baron the specific plan document prepared by the urban design firm of� Freedman Tung and Bottomley. He was delighted with the crisp drawings of tree-lined streets, flanked on either side by buildings four and five stories tall, inspired in large part by his own grand, formal boulevards. Then his eye fell on something that caught his attention. "What is this nonsense?" he thundered, as he pointed accusingly to a portion of text. "What does the gentleman mean exactly, when he says that the boulevard should be series of centers, with stretches of street in between serving as infill," he said with an almost palpable distaste. I tried to explain to this distinguished visitor that the city wants to develop the streets to their full commercial potential. The strategy, as outlined in the specific plan, is to use existing retail centers as "centers" that would be reinforced with new housing, and office and mixed-use buildings. "Bah! Nonsense," said the Baron with 19th Century confidence. "Streets do not have centers. Cities have centers. Where streets converge, that's where you have a center, just as I arranged a dozen boulevards in Paris to converge on l'Arc de Triomphe ." I tried to explain to the Baron, so brilliant but so hopelessly out of date, that� this plan is essentially a democratic document. Real estate investors and merchants were clearly among the many voices that Huntington Beach heeded, and understandably so: City Hall clearly wants to boost sales tax and property tax revenue on these major streets, and that means promoting merchants. "Bah," said the Baron derisively. "Streets do not exist solely for the sake of merchants. Streets are for all the citizens." I tried to explain to Monsieur le Baron that planning in 21st Century California often ends up as a complex arrangement among different groups, sometimes with very different agendas. Even a cursory look at the specific plan reveals a tension among contradictory goals. In one place, the city states a goal of creating beautiful streets that encourage people to walk. On the same page, we find an expression of support for more auto dealerships, a condition that pedestrians shun. "Foolishness," said Baron Haussmann. "You can sell your cars somewhere else. A great street is no place for such uses." Again, I tried to explain to the good Baron that the world had changed considerably since the time when Napoleon III had given Haussmann near-dictatorial powers over the capitol of the French Empire. "At the risk of offending you, M. le Baron , I think you do not fully appreciate what we're trying to do in Huntington Beach. In a democracy, we try to build a consensus toward a plan that satisfies all the different goals. Planners want a great boulevard, merchants want foot traffic and the city officials want sales tax revenue. The compromise solution is a first-rate shopping street with retail prominent among a mix of uses." After listening patiently, the Baron growled. "I simply cannot understand why you Americans insist on doing things in an indirect way," said the Baron. "Rather than simply build the boulevard, you want to create a set of incentives and whatnot, with the hope that a great street will emerge, as if by lucky accident, through the promotion of shopping and other uses. It is sort of like trying to make a woman fall in love with you by standing on a street corner and playing the mandolin, hoping to attract her attention. It is not impossible, of course, but far from certain. You would be better off writing love letters, sending gifts by the hour and threatening to drown yourself in the Seine. That approach is much more direct." "In addition," the Baron continued, "I am not convinced that this plan, despite excellent research and the best intentions, actually accomplishes what it sets out to do. Boulevards are characterized by continuity. Here, in your Huntington Beach, you are proposing some new development around this shopping center and that one, hoping that the in-between places will fill in somehow. If you were to take this type of planning to its logical extreme, you would end up with something very similar to that infernal place, the Las Vegas strip, where you have giant clumps of development � the casino hotels � separated from one another by long stretches of parking lots or T-shirt shops. Is that the kind of multi-center street you want?" At this point, I confess, I grew impatient. "My dear Baron, I must protest. Not all of us have the emperor of France as a client. We live in a democracy, and planning must reflect the goals of all the people." "Or those who have the most money and speak the loudest," replied the Baron, with a directness bordering on rudeness. "Democracy may be a good political system � nay, the best possible � but as for planning, give me autocracy any day. Vive l'Empereur! " At that point, the Baron vanished, and I awoke to the sound of a jackhammer breaking up concrete on the site of a new car dealership. And I still hadn't made up my mind about the specific plan in Huntington Beach.

These days, the California High-Speed Rail Authority might as well be called the Political Traction Company. After winning voter approval of a $9.9 billion bond in November, the authority seemed to become a favorite of the Obama administration, which is eager to fund high-speed rail construction. In addition, some Central Valley communities � such as Fresno and Bakersfield, where stations are set to be built � are eager to see the project advance. Nevertheless, cities along the Peninsula of San Mateo and Santa Clara counties are asking questions about the project. Two cities have already sued to force environmental review of an agreement between the authority and Caltrain. The objecting cities complain that a fast-moving train traveling on elevated tracks would be extremely disruptive to adjacent residential neighborhoods and downtown districts. The cities of Menlo Park, Atherton, Palo Alto, Belmont and Burlingame have formed a coalition that regularly meets to plot strategy on the rail project. Other cities along the probable route from San Jose to San Francisco, however, are receptive to the project and even to hosting a station. The rail authority insists that the project is still in its review stage and that no final decision on the line will be made until an environmental impact report is completed, possibly in late 2010. Trains have traversed the Peninsula since the 19th Century, and a number of the region's cities grew up around train stations. Nowadays, Caltrain operates a popular commuter train service � including several "baby bullets" with express service � between San Francisco and Gilroy. In some cities, train tracks run primarily through industrial areas. In others, tracks abut the back yards of homes and slide through busy downtowns. In April, the High-Speed Rail Authority signed a memorandum of understanding with Caltrain for the right to use the Caltrain right-of-way. A city's concern about the rail project "depends on geography," explained Steve Emslie, deputy city manager for Palo Alto. In his city, train tracks "go right through the middle of the city. It's all residential." A high-speed train traveling 125 mph up and down the Peninsula would have to be separated from all crossings � in contrast to Caltrain, which has mostly at-grade crossings. Cities along the proposed route envision the new train running on tracks elevated 20 feet to 40 feet and built on platforms or embankments. The structures, they worry, would create an imposing and potentially noisy barrier. The cities also fear the rail authority will add several tracks to the two in existence, widening the right-of-way. They are pressing the authority to build the route in a tunnel or covered trench to prevent disruptions. "As the preferred vertical alignment," Atherton Mayor Jerry Carlson wrote to the authority, "Atherton strongly favors undergrounding of tracks and electric power conduits in a tunnel or trench with cross streets at grade level. Other vertical alternatives have far greater adverse impacts with cannot be adequately mitigated." Among the negative effects cited by Carlson were visual blight, loss of heritage trees, noise and depressed property values. In late April, Atherton and Menlo Park sued over the MOU signed by Caltrain and the High-Speed Rail Authority, a suit that Palo Alto supports. The cities argue that an environmental impact report should have been completed before the two entities signed the agreement. The authority, however, says it's too early for anyone to draw conclusions or file lawsuits. The rail authority completed a program EIR for the overall system in 2005, and in 2008 chose Pacheo Pass (near San Luis Reservoir) instead of Altamont Pass for the connection between the Bay Area and the Central Valley. The authority is now working on a program-level EIR for the route between San Jose and San Francisco, said authority spokeswoman Kris Deutschman. Scoping sessions were conducted earlier this year for the tiered EIR. "This is at least an 18-month process," Deutschman said. "The uproar among a couple of cities has been a misunderstanding on their part." Advisory committees with city and other stakeholder representatives will meet regularly during the environmental review process, ensuring that locals have a voice in the project, she added. No decisions have been made regarding a tunnel versus a platform structure, the number of tracks required or the location of Peninsula stations, Deutschman said. One high-speed rail station could be in Millbrae, which already has a giant multi-modal transit station for Caltrain, BART, a San Francisco airport shuttle and San Mateo County buses. Millbrae has encouraged extensive residential and mixed-use development in the vicinity of the transit hub, and thus far has voiced no objection to the high-speed rail plan. Farther south, a station is likely to be built in either Redwood City or Palo Alto. Both cities have Caltrain stations in their downtowns, and Redwood City has pursued a downtown revitalization strategy based largely on transit-oriented development. Redwood City has not taken a position on the high-speed rail project. � "We don't have all the information yet," Redwood City Mayor Roseanne Faust told the San Francisco Chronicle . "How could we possibly make that kind of decision?" Palo Alto also lacks all the information, but officials there are more circumspect. The city is working to gather and analyze as much information as possible, Emslie said. "If money were no object and we had magic wands, we would like to see this thing in a tunnel," Emslie said. The city is trying to learn just how much tunneling would add to the rail project's cost and physical feasibility. It's an alternative the rail authority also is studying. A station in Palo Also is worrisome, Emslie added, because it would likely add six to eight tracks right in the middle of town. "We're also not enamored of the traffic it would generate. These things really function as a mini-airport," he said. A decision on the details of the San Jose-to-San Francisco route is unlikely before late 2010, and construction of any part of the system remains uncertain. The first phase, from Los Angeles to San Francisco, is expected to cost $33 billion to construct. Last year's Proposition 1A provided $9.9 billion, and the authority is asking the federal government to provide $3 billion to $4 billion from the federal stimulus and at least $12 billion in future grants. The authority also is counting on local and regional funding, and about $7 billion in private equity. Resources: California High-Speed Rail Authority: www.cahighspeedrail.ca.gov . City of Atherton: www.ci.atherton.ca.us . City of Palo Alto high-speed rail page: www.cityofpaloalto.org/depts/pln/news/details.asp?NewsID=1223&TargetID=87

The California Supreme Court has reversed an appellate court ruling that regional park and open-space districts said would have greatly diminished their ability to acquire and manage land. In its ruling, the state's top court said that a regional park and open-space district can dispose of property if it has not officially declared – such as by adopting a resolution – that the property is "dedicated" for use as a park and open space. The Fourth District Court of Appeal had ruled that property was automatically dedicated for such use upon park and open-space district acquisition. The distinction is crucial because a regional park and open-space district cannot dispose of a dedicated property without the consent of the district's voters or the state Legislature and two-thirds of the district board of directors. "The ability to delay a board vote to ‘actually dedicate' acquired property allows districts to engage in long-range strategic planning, and permits such districts to acquire property when it becomes available and to hold it in a ‘land bank' for possible future use as park and open space, even if such use, for a variety of reasons, is not yet feasible," Justice Kathryn Werdegar wrote for the unanimous state Supreme Court. Park and open-space districts had argued that requiring the approval of voters or lawmakers for every land-disposal issue, no matter how small, would have presented an unnecessary and new hurdle in acquiring land, planning for its use and managing it (see CP&DR Legal Digest , April 2008 ). The case was brought in 2003 by Wildomar resident Gerald Ste. Marie. Ste. Marie, who's not an attorney but represented himself throughout the litigation, challenged a plan by the Riverside County Regional Park and Open-Space District to sell 80 of 161 acres in Wildomar that the district acquired in 1995 through a purchase and a gift from a landowner. The county Board of Supervisors, which oversees the district, decided to sell the property on Clinton Keith Road after voters rejected a proposed fee to fund the construction and operation of a park on the land. In 2003, the county signed an option agreement to sell the 80 acres to the Mt. San Jacinto Community College District, which wanted to build a new campus on the land. In his suit, Ste. Marie contended that his community lacked sufficient parkland and voters should have decided whether the district could sell the land. In making his case, Ste. Marie cited Public Resources Code § 5655, which states that all property acquired by a regional park and open space-district is immediately, upon acquisition, "dedicated and set apart for" park and open space purposes, as defined by law. Under § 5540, a regional park and open-space district may not convey its interest in real property "actually dedicated and used for park and open space" without the approval of voters, or both houses of the state Legislature and two-thirds of the district's board of directors. A trial court judge and appellant court had agreed with Ste. Marie's reading of the statute and blocked the proposed land sale. In reversing the earlier decisions, the state Supreme Court ruled, " lthough the same word <"dedicated"> is used in both statutes, the Legislature did not use it in the same way. Section 5565 states that land is ‘dedicated,' whereas § 5540 imposes conveyance restrictions on land that is ‘actually dedicated.'" The court said the Legislature's use of the word "actually" should not be ignored. The court cited the legislative history of a 1985 amendment to § 5540. Ste. Marie contended that the amendment only involved a district's ability to dedicate easements. But in its ruling, the court cited a legislative analysis pointing to a broader interpretation: to "clarify a park district's authority to dedicate easements without substantially changing current dedication authority for other property." "This," wrote Werdegar, "suggests the Legislature understood that under the then-extant state of the law, a park district's ‘current dedication authority' for real property involved some affirmative act, such as adoption of a resolution by the board of directors, and did not happen automatically merely upon passage of legal title from a seller to a district." In addition, the court noted, California's eight regional park and open-space districts have always interpreted the term "actually dedicated" to require an affirmative act by a governing board. "Such a long-standing interpretation of a statutory scheme by the government entities involved, established not by a single staff member but memorialized in their master plans or by a resolution adopted by their boards of directors, is entitled to great weight, and we defer to it," Werdegar wrote. Riverside County Supervisor Bob Buster praised the court's decision, saying, "The court saw clearly that progressive counties must have the flexibility to develop creative plans for parks, open space and other resources for their communities." Seven of the state's regional park and open space districts asked the state Supreme Court to overturn the lower courts. Because the districts typically buy land on the open market, they must respond quickly when property becomes available and decide on the details of usage and park boundaries later. (The Los Angeles County Open Space and Recreation District was not a party to the litigation because it merely serves as a funding conduit for other entities.) Mt. San Jacinto Community College District representatives said the district remains interested in acquiring the site. The Case: Ste. Marie v. Riverside County Regional Park and Open-Space District , No. S159319, 09 C.D.O.S. 5875, 2009 DJDAR 6919. Filed May 14, 2009. The Lawyers: For Ste. Marie: Gerald Ste. Marie, in pro. per. For the district: Dennis Peter Maio, Reed Smith, (415) 659- 5942.

Calaveras County supervisors, in a 3-2 vote, have denied permits for a golf course that was built without governmental approval on agricultural land protected by a Williamson Act contract. The county has been wrestling with The Ridge at Trinitas for six years. The 18-hole golf course near Camanche Reservoir is owned by Mike and Michelle Nemee, who built the championship-level course without securing any permits or conducting an environmental review. The Nemees also intend to construct a small hotel and spa on the property, as well as a restaurant and high-end housing. An after-the-fact environmental impact report considered the golf course as an existing condition, but a group of local residents called Keep It Rural Calaveras strongly fought that characterization. The group contended that the golf course was incompatible with the surrounding ranch lands and that the Nemees had not addressed traffic and water-supply issues in their proposed development. In rejecting permits for the project in May, the Board of Supervisors cited the project's incompatibility with the general plan and the area's lack of public water and sewer infrastructure. Now the question is whether the property owners have to remove the golf course. A court is likely to decide. A Bush administration rule change that aimed to streamline reviews under the Endangered Species Act and to eliminate any consideration of how a proposed project may contribute to climate change has been dropped. The Bush Interior Department finalized the rule in December despite waves of protest from environmentalists and California Attorney General Jerry Brown. Besides barring Endangered Species Act (ESA) reviews from considering individual sources of greenhouse gas emissions, the rule would have authorized individual agencies to make ESA determinations on projects, thereby tossing out a longstanding requirement that the reviewing agencies consult with the Fish and Wildlife Service or the National Marine Fisheries Service. President Obama issued an executive order putting the rule change on hold earlier this year. Then Congress authorized the administration to overturn the rule without having to go through the usual, laborious rulemaking process. Environmentalists celebrated the rule's repeal, while development interests predicted a new wave of litigation based on climate change claims. The final rule, 50 CFR part 402, was published in the Federal Register on May 4. A locally written plan to aid the endangered California tiger salamander in Sonoma County is apparently dead. In May, the Obama administration settled a lawsuit with the Center for Biological Diversity, which had sued the Bush administration over its decision to remove land on the Santa Rosa Plain from the rare salamander's designated "critical habitat." In exchange for environmentalists' dropping the lawsuit, the Fish and Wildlife Service will consider reinstating the critical habitat designation. The Bush administration and local governments in Sonoma County, as well as some conservationists, had endorsed a locally devised plan to preserve roughly 4,000 acres of salamander habitat in the most densely populated part of the county (see CP&DR Environment Watch , February 2006 ). The unusual plan, however, languished because funding never materialized. The Fish and Wildlife Service is now considering designating 74,000 acres in Sonoma County as critical habitat, a move that could slow development. Development company DMB Associates announced in May it was dropping a plan to build a 6,800-unit new town in San Benito County. A few days after the announcement, the Arizona-based developer said it had formed a partnership with Cargill to build 12,000 housing units on old San Francisco Bay salt ponds in Redwood City. The proposed new town in Rancho San Benito would have accommodated about 20,000 people on 11,000 acres of agricultural land and pastures just south of the Santa Clara County border (see CP&DR Local Watch , February 2007 ). DMB cited the poor national economy as the reason for dropping the project. The company still owns more than 5,000 acres and has options to buy another 6,000. The Redwood City project would build a 1,400-acre, mixed-use project on abandoned salt ponds east of the Bayshore Freeway. The property was one of the few Cargill held onto when it sold most of its salt ponds to the state in 2003 as part of a giant wetlands restoration project (see CP&DR In Brief , April 2003 ; Environment Watch , July 2002 ). In November 2008, Redwood City voters rejected competing ballot measures that would have required subsequent voter approval for development on the Cargill property. Environmental groups are already lining up to fight the project. A whistleblower lawsuit accusing Pacific Lumber's former parent company of defrauding the federal government in an agreement that managed the harvesting of redwoods on the North Coast has been settled. Maxxam, Inc., agreed to pay $4 million, ending a trial at which former Maxxam CEO Charles Hurwitz was expected to testify. In the suit, Richard Wilson, former director of the California Department of Forestry and Fire Protection, and agency forester Chris Maranto accused Maxxam of falsifying harvesting studies so Pacific Lumber could win approval for an unsustainable level of timber harvesting on about 210,000 acres in Humboldt County. The harvesting figures were approved as part of a 1999 agreement that Pacific Lumber signed with the state and the federal governments, which also resulted in the state acquiring the Headwaters Forest for $480 million. Implementation of the agreement and Pacific Lumber's practices have been the subject of extensive litigation and regulatory activity ever since (see CP&DR Legal Digest , August 2008 and February 2008; Environment Watch , November 2007, March 2006, and August 2004). Wilson and Maranto initially sought $750 million in damages but agreed to drop the suit when Maxxam promised to pay $2.5 million to the federal government, $500,000 to the state and $1 million to the plaintiff's lawyers. Both sides claimed a measure of victory with the settlement. The state and federal governments were not parties to the litigation because of a mutual defense agreement that part of the 1999 deal. Ukiah-based Mendocino Redwood Company acquired Pacific Lumber in a court-supervised bankruptcy sale last year.

Even as local officials in Southern California attack the question of how to implement SB 375, they have slyly begun to suggest that the bill isn't the best way to attack the problem it supposedly addresses – greenhouse gas (GHG) emissions. It is not clear what the locals will do with this line of attack, unless they are angling to try to go back to the Legislature to shift the responsibility for GHG emissions reductions away from land use and back toward technological improvements. The most public attack so far came last week from Ty Schuiling, planning director for the San Bernardino Associated Governments (SANBAG) – a group of local governments that can be expected to be hostile to SB 375's goals. At a conference last week put on by the Leonard Transportation Center at Cal State San Bernardino , Schuiling challenged the idea that land use changes are required to meet the state's GHG reduction goals because the goal cannot be met by making cleaner vehicles, as the California Air Resources Board has suggested. "That is simply not true," Schuiling said. Schuiling pulled out what he clearly regards as a "smoking gun" on the GHG issue – a letter from the South Coast Air Quality Management District claiming that zero-emission vehicles still must be the weapon of choice against GHGs. "To achieve federal clean air standards, this region has little choice but to reduce the very GHG emissions targeted by SB 375 to near-zero," the air district's letter to the I-710 Technical Advisory Committee says.  "Clean vehicle penetration far beyond levels assumed by the ARB have been identified as the most likely – perhaps only - way to do it." Schuiling also noted that different types of cars have different GHG emissions – noting that a 2004 Toyota Prius has half the GHG emissions of a 2004 Chevy Malibu, suggesting that fleet turnover can have a big effect. A similar but more subtle argument came from Hasan Ikhrata, the executive director of the Southern California Association of Governments , which is charged with implementing SB 375 in the Los Angeles region. Speaking on the same panel as Schuiling, Ikhrata said: "I don't think 375 should be thought of as a global warming bill. I don't think it's the most cost-effective way to reduce GHG emissions. … When I speak about 375 I speak about a land use bill, an urban form bill." This was substantially the same point Ikhrata made a couple of weeks ago at the SCAG General Assembly in La Quinta, when he rolled out SCAG's "conceptual land use plan". Ikhrata did not deny that SCAG and the region's local governments should pursue a more efficient urban form, but, rather, argued that policymakers should rely less on the idea that climate change is the reason for doing so. All the powerpoints from the Leonard conference, including my opening keynote speech – which focused on the difference between meeting technical requirements of SB 375 (such creating Sustainable Communities Strategies) and actually creating communities "on the ground" that result in less driving (mostly by concentrating development around transit and parking) – can be found at here . – Bill Fulton

The recession and slack development activity have caused about 10 cites and counties to reduce their development impact fees, while more jurisdictions have delayed collecting fees until new buildings are ready to occupy. Some interest groups regard the fee deferrals as helpful in generating local activity. But whether fee reductions are similarly stimulative is debatable. During the construction slowdown in the early 1990s, many cities and counties cut their development impact fees as an incentive for builders. The reductions almost became a contest, as one city after another sliced their exactions to entice builders to build. The recent fee reductions have not become as widespread. In part that's because cities and counties have been taking advantage of a state law – clarified last year by AB 2604 – that permits local governments to delay fee collections until a final building inspection and the granting of the certificate of occupancy. Nearly 50 jurisdictions have adopted such deferrals, according to the California Building Industry Association (CBIA). The City of Fremont has cut fees and this month is likely to approve fee deferrals as well, according to Planning Director Jeff Schwob. The fee deferral "seems to be something more people are interested in because you don't have to finance the impact fees. From what we hear from the development community, that might be more effective" than fee reductions, he said. Schwob's finding would not surprise Richard Green, director of the University of Southern California Lusk Center for Real Estate. "Giving away tax incentives or reducing fees in the short-run – I'm not convinced from the academic literature that's a very effective strategy," Green said. With housing prices "less than it costs to build a house," why try to spur new housing construction? Still, the business of the CBIA is to spur housing construction, so the organization has lobbied at the state and local levels for lower development fees. "During the housing boom, many cities and counties sharply raised the fees they charge new-home builders – and, thus, new-home buyers – by ten of thousands of dollars per home," said Mick Pattinson, head of San Diego-based Barratt American and the chair of the CBIA's Impact Fee Task Force. "The average impact fee today is about $50,000 statewide, and there are many jurisdictions where the fees total more than $100,000 – nearly as much as it costs to actually build many homes." During the recession, the falloff in housing construction in California has been unprecedented – from 213,000 housing units in 2004 to 65,000 units last year. The CBIA estimates that fewer than 45,000 units will be built this year. The commercial real estate market may be even weaker, especially with such retail chains as Circuit City, Mervyn's and Gottschalks going out of business, and shopping mall powerhouse General Growth filing for bankruptcy. Cities and counties rely on building application fees to pay staff salaries, on development impact fees to finance infrastructure projects, and on property and sales taxes to fund services. To help maintain revenues, some cities have adopted their own economic stimulus packages ( see CP&DR , March 2009 ), and impact fee cuts and deferrals are usually part of them. In Fremont, for example, the City Council approved a stimulus package that reduced development impact fees by 10% through 2010 and by 25% in the Central Business District through 2011. The package includes a three-year business license tax exemption for clean technology companies and a doubling of the local business purchasing preference. Planning director Schwob conceded that the modest fee cuts are mostly symbolic, although he said they reflect the lower cost of constructing projects included in the city's capital-improvement program. He doubted that any of the city's backlog of approved projects would break ground this year simply because of the fee reductions. The fee deferral, which could be implemented this summer, might have a bigger effect, he said. Other jurisdictions have cut fees, whether for symbolic or practical reasons. Corona slashed its development impact fees by 40% for two years. Dublin reduced traffic impact fees by 3% to 11%, depending on the project; it also suspended for two years a city requirement that developers of large commercial and residential projects provide a piece of public art. The new City of Menifee and the Riverside and San Bernardino county governments are weighing development impact fee reductions of 20% to 50%. The City of Thousand Oaks has left its impact fees untouched but slashed its affordable-housing fees to zero in hopes of making at least some market-rate projects financially feasible. Last year, it adopted a comprehensive housing program that contained an inclusionary measure requiring developers to make 10% of their units affordable or pay an in-lieu fee of $9,000 per single-family house and $25,000 per condominium. The program also added "linkage fees," of up to $4.50 per square foot for new non-residential development. In May, the city set all of these fees at zero through June 30, 2010. The CBIA trumpeted Thousand Oaks's fee cuts as "an effort to jump-start homebuilding and its local economy." Thousand Oaks Community Development Director John Prescott characterized the move differently. "I don't know that resetting these fees to zero is really going to jump-start anything on the residential side," Prescott said. "But it's a factor that will benefit applicants for single-family housing when they put together their pro formas." Since the city commissioned a study to explore the effects of its comprehensive housing program and fee reductions, "the housing economy and some of the non-residential sectors have suffered," Prescott noted. The temporary elimination of affordable housing fees is simply a recognition of the current economic downturn, he said. Unquestionably, housing in Thousand Oaks is more affordable today than it was earlier in the decade. According to city officials, the median sales price has dropped by $305,000 since the 2006 peak to $423,000. And prices are not expected to rise in the near future because of the number of foreclosures in the city. These kinds of statistics bolster the arguments of Max Neiman, associate director of the Public Policy Institute of California. He says reducing legitimate fees in the hopes of stimulating economic development is a "desperate act," especially considering the huge number of foreclosed homes on the market. "Do communities really need more housing construction at this point? Unless you're talking about trying to keep a developer with a desirable project from walking way, it makes no sense," Neiman said. "In times like this, communities get more involved in economic development," Neiman added. But "this economic downturn is very, very different from others we've had. It looks much more like a classic downturn that involves a broad array of industries." Green, of the Lusk Center, said the legitimacy of the fees is the larger issue. Some jurisdictions jacked up fees during the housing boom because developers were willing to pay nearly anything simply to win entitlements, he noted. "It was opportunistic." Now might be a good time to reconsider whether a development's impact truly relates to the supposed burden offset by a fee, Green said. "To the extent the fee is justified, don't get rid of it now. You don't want to allow a developer to add to congestion for free," he said. That debate is playing out in Riverside County, where supervisors are considering cutting a variety of fees that fund infrastructure projects, and where pressure is rising for the Western Riverside County of Governments to slash a regional transportation fee. Supervisors Roy Wilson and Bob Buster have balked at reducing fees, calling the idea a "feel good" move that that would hurt the county's ability to build needed infrastructure. A decision on the fees is likely this summer. Contacts: Richard Lusk, USC Lusk Center for Real Estate, (213) 740-4093. Max Neiman, Public Policy Institute of California, (415) 291-4441. John Prescott, City of Thousand Oaks, (805) 449-2323. Jeff Schwob, City of Fremont, (510) 494-4440. California Building Industry Association: www.cbia.org