A decade of litigation over the status of the northern goshawk has apparently concluded with the Ninth Circuit Court of Appeals upholding the Fish & Wildlife Service's decision not to place the bird on the endangered species list. The ruling was good news for loggers, who contended that Endangered Species Act protection for the northern goshawk would restrict timber harvesting much like the listing of the northern spotted owl did in 1990. The controversy started in 1991 when 19 environmental groups petitioned the Fish & Wildlife Service (USFWS) to list the northern goshawk as an endangered species in Utah, Colorado, New Mexico and Arizona. The agency declined to list the bird, finding that there was no evidence the species west of the 100th meridian was distinct from the species east of that line. The environmental groups sued, and U.S. District Court Judge Richard Bilby ruled that the USFWS decision was arbitrary. He directed the agency to reconsider. The agency did so but reached the same conclusion. The environmentalists sued again, and Bilby again ruled the USFWS decision was arbitrary. So in September 1997, the agency issued a finding that listing of the goshawk "may be warranted" and assembled a team to study the issues. The team concluded the species was well-distributed and there was no evidence that its range in the West had significantly contracted, so the agency in June 1998 declined to list the goshawk as endangered or threatened. Environmentalists sued again, but this time District Court Judge Helen Frye upheld the USFWS's decision. On appeal, so did the Ninth Circuit. The agency "assembled a team of wildlife biologists with special expertise in the area of goshawks to conduct a status review. The administrative record indicates the status review team conducted a comprehensive review of scientific published and unpublished literature, peer reviews and raw data in making their report," wrote Judge Donald Lay, an Eighth Circuit judge sitting by assignment on the Ninth Circuit bench. The agency's "decision was not arbitrary or capricious … was amply supported by evidence in the record," Lay wrote for the court. The Case: , No. 01-35829, 03 C.D.O.S. 6393. Filed July 21, 2003. The Lawyers: For Center for Biological Diversity: Daniel Rohlf, Pacific Environmental Advocacy Center, (503) 768-6707. For the U.S. Fish and Wildlife Service: Susan Pacholski, Department of Justice, (202) 514-2000.

A federal appeals court has lifted an injunction against a City of Los Angeles billboard inspection fee, finding that the billboard companies that opposed the fee are unlikely to win a First Amendment lawsuit. In October 2002, District Court Judge Stephen Wilson blocked the city from imposing the $314-per-sign annual fee for inspections of off-site billboards. Judge Wilson concluded that the billboard owners had presented a good case that the fee violated their First Amendment rights. But a unanimous three-judge panel of the Ninth U.S. Circuit Court of Appeal reached the opposition conclusion and lifted the injunction. The billboard companies “offered no specific evidence that the inspection fee would burden their speech unconstitutionally,” the court held. The decision apparently means the city may collect the fee while the lawsuit goes forward. At the behest of City Attorney Rocky Delgadillo, the Los Angeles City Council adopted the “off-site sign periodic inspection program” in February 2002. Five months later, the council adopted an ordinance setting the first-year fee at $314. With about 10,000 billboards in the city, the fee would generate approximately $3 million annually for Delgadillo’s vaunted, new crackdown on illegal signage. Clear Channel Outdoor, Viacom Outdoor and National Advertising Company filed a lawsuit arguing that the city had imposed a “content-based fee on certain speech” in violation of the First and Fourteenth Amendments. Judge Wilson quickly granted the companies’ request for an injunction, finding that the city’s laws favored commercial speech over noncommercial speech, impermissibly differentiated between types of noncommercial speech and between types of commercial speech, and were unconstitutionally vague. However, the Ninth Circuit found Wilson’s analysis “incomplete in at least three aspects.” Wilson held that the city could not differentiate between on-site and off-site signs. But the Ninth Circuit ruled that “there is nothing novel or constitutionally infirm” about the on-site/off-site distinction. Writing for the court, Judge Barry Silverman cited the U.S. Supreme Court’s decision in , 453 U.S. 490 (1981), in which the court ruled that the city could distinguish between on-site and off-site commercial signs. “A sign’s status as ‘off-site’ or ‘on-site’ … is primarily a function of the permittee’s choice, not the government’s classification,” Silverman wrote. The billboard companies argued that the distinction discriminated against noncommercial billboards, which by their nature would be off-site. But the city ordinance contained a “substitution clause” that allowed noncommercial messages on either on-site or off-site signs, the Ninth Circuit noted. Additionally, Wilson, who ruled in October 2002, did not consider an amendment the City Council passed in March 2003 that ensured that the city was not favoring commercial speech over noncommercial speech, the Ninth Circuit ruled. That amendment struck the words “or noncommercial message” from the definition of off-site sign. “This small change is important because it makes it impossible that a noncommercial sign would be designated an ‘off-site’ sign for the purpose of inspection, even if that sign structure is, in the ordinary sense of the term, off-site,” Silverman wrote. As for the impact on commercial speech, the Ninth Circuit rejected Wilson’s finding that the ordinances were not the most direct approach to addressing the city’s legitimate concerns regarding traffic safety and general aesthetics. Wilson apparently thought the city should have focused on on-site signs, which account for 97.5% of the signs in the city. The appellate panel ruled that a selective program could still be consistent with the city’s goals. “ f an inspection program is designed to advance a valid city interest — reducing the number of dangerous, non-conforming signs — it should not matter that it is underinclusive,” Silverman wrote. “Moreover, as appellees all but concede, the city could constitutionally pass an ordinance banning all commercial off-site signs. It makes little sense, then, to argue that adopting a program that merely subjects those signs to inspections would be unconstitutional.” Finally, the Ninth Circuit found nothing vague about the ordinances. The Case: , No. 02-56947, 03 C.D.O.S. 7359, 2003 DJDAR 9236. Filed August 15, 2003. The Lawyers: For Clear Channel: Richard Kendall, Irell & Manella, (310) 277-1010. For the city: Michael Klekner, city attorney’s office, (213) 485-5420.

Development at Playa Vista, the controversial project on Los Angeles's West Side, is proceeding even though the project is getting smaller. During the same week in September that Playa Vista hosted an official grand opening, Gov. Gray Davis said he would sign a bill to spend $25 million of state bond money to partially purchase 193 acres at Playa Vista for habitat restoration and open space. The grand opening attracted potential buyers and renters to the new housing units, which are rising rapidly and already are home to about 1,000 people. The purchase is part of a larger deal brokered by the Trust for Public Land that would result in permanent protection for about 550 acres, much of which is degraded marshland. But even though both developers and environmentalists appear that they can claim victory in the longstanding feud over Playa Vista, the fight continues. The next battleground will apparently be Phase 2, a 111-acre mixed-use proposal in the heart of the development that the City of Los Angeles is reviewing. "We're going to hit them with everything we have," vowed Tom Francis, executive director of the Ballona Wetlands Land Trust, which continues to oppose any development at Playa Vista. "We're not going away." The 25-year history of the Playa Vista project is as long and tortured as any in California. As the project has proceeded through the regulatory, political and legal arenas, leaders of the New Urbanist movement applauded the project before some members partially retreated, and environmental groups have divided sharply over the merits of the project's mitigations. The original project developer, Howard Hughes's Summa Corp., gave way to Maguire Thomas Partners, which gave way to Playa Capital LLC. One of the project's most vociferous and well-connected backers, DreamWorks SKG movie studio, bailed out of Playa Vista entirely (see , August 1999, June 1999). Renowned architect Frank Gehry announced he was moving his office from nearby Santa Monica to Playa Vista, only to change his mind a year later after extensive public outcry. And the top man at master developer Playa Capital LLC, Peter Denniston, departed in 2001 so that real estate broker Steve Soboroff, a confidant of former Los Angeles Mayor Richard Riordan who lost an election to succeed Riordan, could oversee the project. For some New Urbanists and planners, Playa Vista offers the ideal infill site. The 1,087 acres between the San Diego Freeway and the coast that had been home to Hughes's aircraft manufacturing plant had largely sat idle since the 1970s. Playa Vista held the promise of providing homes for the job-rich West Side and of offering sites for new, high-paying employment. But for environmentalists, Playa Vista offered the best chance to restore a large, coastal wetlands in Los Angeles County, where about 97% of historic wetlands are gone. The site had been heavily degraded by aircraft manufacturing, farming and dumping of fill from development of Marina del Rey, but the site was still essentially a swamp that provided wildlife habitat. Summa started planning for Playa Vista development in 1978, and during the 1980s and early 1990s, the size of the project grew until the master plan topped out at 13,000 housing units, 5.2 million square feet of office space, 600,000 square feet of retail development and 750 hotel rooms. At the same time the proposed development grew, the amount of protected wetlands and open space also increased from about 175 acres to 340 acres. During the 1990s, the city approved roughly 3 million square feet of office space and 3,200 residential units. Under plans advancing now, Playa Vista development would be limited to about 330 acres. The project would have 5,800 residential units, 3.4 million square feet of office and industrial space and 185,000 square feet of retail. The other 70% of the 1,087-acre site would be wildlife habitat, open space and parks. "It truly is the smaller, greener Playa Vista," said Doug Moreland, senior vice president of development for Playa Capital. Most of the office and industrial space lies at the eastern end of the project and was entitled during the 1990s. With a proposed 47-acre studio, DreamWorks was supposed to anchor this employment center. But DreamWorks' pullout in 1999 was followed by the crash of the dot-com industry, which hit the West Side hard. By the time developer Maguire Partners and investor Equity Office completed the 250,000-square-foot Water's Edge office complex in mid-2002, a glut of space dominated the market. The gleaming office buildings sat vacant. Fortunes turned in August when video game giant Electronic Arts (EA), announced it would lease the Water's Edge complex. The company plans to move in during 2004 and employ up to 1,000 people at the location. Soboroff called EA's decision "a milestone in our development's history." Indeed Playa Vista — advertised as a self-contained community where people live, work, shop and play — has been almost exclusively residential since people began moving into apartments in April 2002. A dozen builders continue to erect apartments, condominiums and single-family houses, with for-sale models ranging in price from about $280,000 to nearly $1 million. Buyers have had to win lotteries to get some new homes. Now, attention is turning to Phase 2, also called "The Village," on a 111-acre site between the developing residential areas, and the office and industrial zone. The Village is proposed to have 2,600 housing units, 175,000 square feet of office space and 150,000 square feet of retail stores focused around a mixed-use town center. Moreland called The Village "the missing puzzle piece" that connects the east and west ends of the project. The Village is proposed to have the grocery store, restaurants, small shops and professional offices that will serve Playa Vista residents. "With EA, we now have a major employer," Moreland said. "So we now have housing and employment. What we need is to have places for people to shop here." The city released a draft environmental impact report on The Village in August and has set a 120-day public comment period — twice as long as normal "because of the complex nature of the document," city planner Sue Chang said. The EIR lists as unmitigated significant effects cumulative air pollution, traffic congestion at one intersection and loss of visual qualities. Loss of wildlife habitat is also a concern. Traffic has long been a central issue because Playa Vista lies just off the usually jammed San Diego Freeway, and the thoroughfares that split the site can be equally congested. Playa Vista backers point to extensive improvements required to surface streets and to the development's transit amenities, including an internal shuttle system. Playa Vista backers also argue that the 5,800 residences help the jobs-housing balance in what has been a job-heavy area. Moreland said he would like to get The Village — which involves a general plan amendment, specific plan amendment, zoning changes and tract maps — before city decision-makers by early 2004. City planner Marc Woersching, however, said it would be at least August or September of 2004 before the City Council sees the project. The timeline appears to be much shorter for the state's acquisition of land at Playa Vista. Under the deal that was advancing in September, the state would pay $139 million for 193 acres. In addition, Playa Capital would donate about 300 acres and would waive its right to develop 68 acres that has been held in trust for the state since the 1980s. The Trust for Public Land, which acquired an option to purchase the 193 acres two years ago, helped put together the deal. "It is the remnant of the last remaining, recoverable wetlands in Los Angeles County," TPL spokeswoman Mary Menees said. The TPL is committed to maintaining the territory for five years, but a restoration plan and ultimate site management would be up to the Department of Fish and Game. The proposed deal "resolves 20 years of battles," Menees said. "If this doesn't work, chances are it will never be protected." But, demonstrating that environmentalists still do not speak with one voice, the Ballona Wetlands Land Trust's Francis said the deal was misguided because it focused on land in the coastal zone that is pockmarked with wetlands. That land is the most difficult to develop from regulatory, political and economic standpoints, he said. Instead, the state should be acquiring the most threatened parts of the project site, Francis argued. The site of Phase 2, he said, should become a wildlife refuge and public park, he said. Contacts: Doug Moreland, Playa Capital, (310) 448-4614. Mary Menees, Trust for Public Land, (415) 495-5660. Tom Francis, Ballona Wetlands Land Trust, (310) 264-9468. Sue Chang, City of Los Angeles, (213) 978-1397. Playa Vista EIR: www.lacity.org/PLN/ www.lacity.org/PLN/">www.lacity.org/PLN/ Playa Vista website: www.playavista.com

State lawmakers approved few pieces of substantial land use legislation before adjourning for the year in September. Nearly all of the high-profile proposals became two-year bills, meaning they will be revived in some form after the Legislature returns in January. Some of the approved bills that could have the largest impact on land use, directly and indirectly, were Sen. Dean Florez’s package of legislation addressing San Joaquin Valley air pollution. Five pieces of his 10-bill package were approved, including the centerpiece AB 700, which ended farms’ exemption from air pollution regulations (see , April 2002). However, bills addressing housing, urban growth boundaries, Indian sacred sites and the two-thirds vote requirement for local taxes failed to reach the governor’s desk. Lobbyists and Capitol insiders pointed to the huge budget deficit, the recall, ever-increasing partisanship and the lack of interest in land use among the Legislature’s leaders as factors for the slow year. “I think our bills started going south because of the budget deficit, not because of the recall,” said Julie Spezia, executive director of the California Futures Network, a coalition of “smart growth” organizations. “Pretty much everything that was really meaningful became a two-year bill.” California Building Industry Association Vice President Tim Coyle agreed that little land use legislation of substance came out of this year’s session — which was fine from the CBIA’s perspective. “I think it’s fair to say that we played a lot of defense this year,” Coyle said. Still, a number of bills that at least tinkered with various parts of California’s land use regulatory system were passed, and Gov. Davis had already signed some of them by late September. Unlike the previous four years, Davis was vetoing few bills. Housing advocates had hoped for a big year, as lawmakers introduced scores of housing bills (see , April 2003). But after many of the sweeping housing proposals become two-year bills, housing advocates’ major victory appeared to lie in SB 619 (Ducheny) — and it was watered down. Essentially, the measure makes a multi-family housing development of up to 100 units with a substantial percentage of affordable units (10% very low-income, 20% low-income or 50% moderate income) a permitted use in multi-family zoning districts. A city or county cannot require a conditional use permit for such a project so long as the project is on an infill site in an urbanized area and does not need an environmental impact report. Supporters said the bill would streamline the regulatory approval process for affordable housing developments and prevent local governments from discriminating against affordable housing projects. One high-profile housing bill that nearly won approval was AB 1426 (Steinberg), which would have required that very low- or low-income housing constitute 10% of all new housing in the six-county Sacramento region. The measure passed in the Assembly but stalled at the last minute in the Senate in the face of opposition from builders and local governments — some of which had voiced at least luke-warm support for the bill earlier. Cities and counties complained about another mandate on local government, while builders were concerned that the bill would require use of inclusionary zoning to produce the affordable units. Steinberg aide Gary Davis said that the Sacramento lawmaker, rather than jam through AB 1426 over the opposition, would consider amendments proposed by developers. But there is no doubt the bill will be back in some form, and it could set an affordable housing production precedent for the rest of the state. Smart growth advocates pointed to two school bills as their biggest victories of the year. Assembly Bill 1244 (Chu) allows schools to apply for facility modernization money every 25 years, rather than just once. Assembly Bill 1631 (Salinas) drops the requirement that a conversion of a single-story school to a multi-story building also comes with a switch to a multi-track system. The idea behind both bills is to improve schools in existing urban areas, said Spezia. “We put quite a bit of energy into the schools issue,” she said. “A lot of people flee to the suburbs because of the perception — and it might be true sometimes — that their children will receive a better education.” Assemblywoman Patricia Wiggins (D-Santa Rosa), who heads the Smart Growth Caucus, did not get far with her AB 1268. That measure would require cities and counties to adopt 20-year urban growth boundaries and inclusionary zoning to ensure that 20% of new units are for very low- or low-income residents. The bill is likely to return in some form next year, although the details could be substantially different. Coyle said AB 1268 amounted to diminishing the supply of land and then taxing builders to make up for the loss. “It’s one of the most absurd ideas I’ve ever seen,” he complained. A bill that sets a precedent for consideration of air pollution in general plans won approval. Assembly Bill 170 (Reyes) requires counties and cities in the eight-county San Joaquin Valley Air Pollution Control District to amend their general plans to describe local air quality conditions, summarize existing air quality policies and programs, set goals, policies and objectives to improve air quality, and contain feasible implementation measures. The League of California Cities opposed AB 170 because of the precedent. The League also argued that the state was sending conflicting signals. “To comply with this bill, communities that embrace air pollution control as paramount and modify their general plans accordingly could easily be accused of being anti-housing at the same time,” stated a letter from the League to lawmakers. Kern County Planning Director Ted James said he was concerned that air quality data that AB 170 requires to be placed in a general plan could become outdated in only a few years, making the general plan subject to legal challenge. The bill is another sign that lawmakers “view the general plan as the panacea for resolving everything,” James added. But the San Joaquin Valley air district backed the bill. “It strengthens the link in peoples’ minds between land use planning and air quality,” said district spokeswoman Josette Merced Bello. “That’s something we’re always working on with the cities and counties.” The complaints about AB 170 were minor compared with the outcry from cities, counties, farmers, developers and business leaders over the 10-bill package of Central Valley air bills by Sen. Dean Florez (D-Shafter). In the end, lawmakers approved half of the measures, and the governor signed them all at once in late September: • SB 700, which ends agriculture’s exemption from air quality regulations. • SB 704, which provides $6 million in incentives for biomass facilities to accept agricultural waste • SB 705, which phases out open-field burning of farm fields • SB 708, which increases fines on polluting vehicles. • SB 709, which increases the authority of the San Joaquin Valley air district in several ways. The debate over the bills was cast as economy versus environment, and several Democratic lawmakers from the valley and from inner cities refused to support the legislation. One Florez bill that did not pass this year was SB 707, which would prohibit dairies within three miles of a city or school in most instances. That bill divided local governments with, for example, Kern County in opposition but the county seat of Bakersfield in support. The bill is likely to return in 2004. A farm-related bill that did pass was AB 1492. It concerns breaches of Williamson Act contracts, which prohibit development for 10 years in exchange for property tax breaks. A survey by the office of author John Laird (D-Santa Cruz) and the Department of Conservation found a number of places where development — including apartment buildings and even a shopping mall in Tracy — had occurred on land still enjoying Williamson Act tax breaks. At first, the bill attempted to address existing and future violations, but after meeting stiff opposition from builders and real estate interests, Laird amended the bill to apply only to violations after January 1, 2004. The bill establishes a process local officials must implement to remove a property from Williamson Act protection when development of protected land occurs and doubles the penalties for contract breaches. Lawmakers also approved, and the governor signed, AB 1347 (Maze), which requires local governments to account for fees received through development agreements in the same fashion as other impact fees. Coyle, of the CBIA, which backed the measure, called it a “good government accountability bill.” However, many development agreements say only that the money collected is to be spent at the discretion of the local government. The most controversial land use bill of the entire session might have been SB 18 (Burton), which would have required an expanded Native American Heritage Commission to review developments proposed within five miles of a “traditional tribal cultural site.” Supporters said the bill was necessary to protect sacred sites. Opponents argued the bill was too far-reaching, supplanted local authority and made the California Environmental Review process unworkable. The bill died on the Assembly floor during the final hours of the session. Also failing this year were numerous bills that sought to lower the two-thirds vote requirement for local bonds and taxes. None of those bills passed either house. • AB 51 (Simitian). Requires general plans to identify land use categories that provide for child care facilities. Passed. • AB 94 (Chu). Permits cities and counties to increase their existing extraordinary property tax rates to pay for pension programs approved by voters before Proposition 13 was passed in 1978 (see CP&DR Legal Digest, September 2003). Passed. • AB 170 (Reyes). Requires cities and counties within the eight-county San Joaquin Valley Air Pollution Control District to amend their general plans with goals, policies objectives and implementation measures intended to improve air quality. Passed and signed by governor. • AB 332 (Mullin). Requires cities and counties to notify airport land use commissions and Caltrans before overriding airport land use compatibility plans. Passed and signed by governor. • AB 406 (Jackson). Prohibits lead agencies from allowing developers to hire their own CEQA consultants to prepare environmental documents. Two-year bill. • AB 487 (Frommer). Requires rental car companies to charge a 2.29% fee to fund state highway projects near airports. Passed. • AB 514 (Kehoe). Requires installation of water meters by 2013 in urban areas supplied by the Central Valley Project, notably the cities of Fresno, Roseville and Folsom. Passed. • AB 531 (Kehoe). $10 billion bond for infill infrastructure and to replace aging infrastructure. Two-year bill. • AB 518 (Salinas). Requires local agency formation commissions to consider how proposed boundary changes affect regional housing needs. Passed and signed by governor. • AB 520 (Salinas). Allows the Santa Cruz Local Agency Formation Commission to approve phased annexations implementing Watsonville’s voter-approved growth management plan (see CP&DR Local Watch, February 2003). Passed and signed by governor. • AB 944 (Steinberg). Permits property and business improvement districts to issue assessment bonds and levy assessments against business owners. Passed • AB 1158 (Lowenthal). Overhauls the housing element process to give councils of government more authority in determining and distributing needs. Two-year bill. • AB 1160 (Steinberg). Prohibits local governments from imposing “unreasonable” development standards on second units. Two-year bill. • AB 1221 (Steinberg). Swaps half of a city’s or county’s sales tax revenue with property tax revenue. Two-year bill. • AB 1228 (Dutton). Codifies Federal Communications Commission regulations by requiring that zoning ordinances allow amateur radio antennas. Passed and signed by governor. • AB 1244 (Chu). Allows schools to apply for modernization funds every 25 years, lifting a one-time-only limitation. Passed. • AB 1347 (Maze). Requires local governments to account for fees received through development agreements the same way local governments account for other development impact fees. Passed and signed by governor. • AB 1410 (Wolk). Places transit-oriented development on the list of uses that receive preferential treatment when public agencies sell surplus land. Passed. • AB 1426 (Steinberg). Sets a 10% affordable housing production standard for the Sacramento region. Two-year bill. • AB 1492 (Laird). Creates a new procedure for terminating Williamson Act farmland preservation contracts if there is a contract breach in the future, and doubles penalties for breaches. Passed. • AB 1631 (Salinas). Drops the requirement that a school go to a multi-track schedule if it is converted from a single-story structure to a multi-story building. Passed. • AB 1748. Requires public disclosure of appraisals, purchase contracts and environmental studies when the state purchases land for parks and wildlife refuges. Passed but vetoed by governor. • SB 18 (Burton). Requires an expanded Native American Heritage Committee to review developments within five miles of “traditional tribal cultural sites.” Failed by three votes on the Assembly floor. • SB 86 (Machado). Establishes the Sacramento-San Joaquin Delta Conservancy to protect farmland and open space. Two-year bill. • SB 109 (Torlakson). Alters the attorney general’s oversight of redevelopment agencies’ annual audits, in part by giving the attorney general more time to sue local agencies for major violations. Passed and signed by governor. • SB 114 (Torlakson). Prohibits all subsidies of retail stores of at least 75,000 square feet and vehicle dealerships and relocating within the same market. Passed. • SB 178 (Cedillo). Amends the Costa-Hawkins rent control law to permit local governments to impose restrictions on inclusionary housing units. Gutted at last minute. • SB 321 (Torlakson). A $15 billion bond for transportation projects, affordable housing and the Infrastructure and Economic Development Bank. Two-year bill. • SB 619 (Ducheny). Streamlines processing of affordable, multi-family housing projects of 100 units or less, in part by prohibiting cities and counties from requiring conditional use permits if the project is in a multi-family residential zone. Passed. • SBs 700 to 709 (Florez). Ten-bill package concerning Central Valley air quality. Passed and signed by governor were SBs 700, 704, 705, 708 and 709, which, among other things, end agriculture’s exemption from air pollution regulations. • SB 744 (Dunn). Creates a state board to hear appeals from housing developers and provides incentives for local governments to produce housing. Two-year bill. • SB 745 (Ashburn). Makes permanent the Subdivision Map Act’s environmental subdivision provisions, which are intended to ease the purchase and dedication of land as mitigation for development. Passed and signed by governor. • SB 806 (Sher). Renames the general plan’s circulation element the “transportation element.” Two-year bill. • SB 810 (Burton). Gives regional water quality control boards authority over water quality protections in logging plans. Passed. • SB 898 (Burton). Prohibits until 2015 the rezoning of certain agricultural lands for development purposes. Two-year bill. • SB 1049 (Senate Budget and Fiscal Review Committee). A budget trailer bill that increases certain use fees and levies new fees, including a charge of $70 per parcel on 750,000 lots that receive fire protection from the California Department of Forestry and Fire Protection. That fee drops to $35 beginning next year. Passed. • ACA 7 (Dutra). Lowers the voter-approval threshold for a half-percent sales tax override for local transportation projects from two-thirds to 55%. Two-year bill. • ACA 14 (Steinberg). Lowers the vote requirement from two-thirds to 55% on sales tax increases to fund affordable housing, infrastructure, parks and open space, and “neighborhood improvements.” Two-year bill. • SCA 2 (Torlakson). Allows approval of a sales tax override for transportation or “smart growth” planning with a majority vote. Two-year bill. • SCA 11 (Alarcon). Lowers the voter-approval threshold for local special taxes and bonds funding affordable housing, transportation, open space and infrastructure from two-thirds to 55%. Two-year bill.

A divided panel of federal judges has upheld an Arizona state law that requires adult-oriented businesses to shut down at 1 a.m. Both the two-judge majority of the Ninth U.S. Circuit Court of Appeals panel and the dissenter based their opinions largely on Supreme Court Justice Anthony Kennedy’s concurring opinion in , 535 U.S. 425 (2002) (see , June 2002). In , the high court narrowly upheld a city law barring two adult businesses from sharing the same premises because of the secondary effects of concentrating adult businesses. The case marked the first time the Ninth Circuit had considered mandatory closing hours for adult businesses, and the court joined six other circuits that have held similar regulations to be constitutional under the “secondary effects” test laid out in the landmark case , 475 U.S. 41 (1986). In 1998, Arizona state lawmakers approved a bill that required “sexually-oriented businesses” — nude dance clubs, X-rated video arcades, adult bookstores and novelty shops and escort services — to be closed from 1 a.m. to 10 a.m. on Monday through Saturday and from 1 a.m. to noon on Sunday. The regulation was part of a bill that authorized Arizona counties to develop land use regulations, and to license and regulate adult businesses. Adult business owners sued, and District Court Judge Earl Carroll ruled for the state. The adult business owners appealed, and the Ninth Circuit panel voted 2-1 to uphold the lower court. Under the framework first established in , a regulation must not be a total ban on constitutionally protected speech (such as sexually oriented entertainment), must not be aimed at the content of the speech, must be designed to serve a substantial government interest and must leave open reasonable alternative avenues of communication. The government interest typically at stake is reduction of “secondary effects,” namely crime in and around the adult business locations. The U.S. Supreme Court relied on in deciding the case. But the concurring opinion authored by Kennedy, who provided the key fifth vote in , is considered the controlling opinion. Kennedy established a new, two-part test built upon : “First, what proposition does a city need to advance in order to sustain a secondary effects ordinance? Second, how much evidence is required to support the proposition?” In answering the first question, the government must show that the secondary effects will be significantly reduced while the quantity of speech remains “substantially undiminished,” Kennedy wrote. The answer to the second question, he wrote, is “very little.” (The Ninth Circuit had struck down the Los Angeles law because of the lack of evidence used by the City Council.) The adult business owners argued that Kennedy’s opinion established a heightened proportionality requirement. In other words, the government could not combat second effects simply decreasing the amount of speech. The business owners contended that was exactly what Arizona did, especially considering that the businesses do a great deal of trade in the wee hours. But the Ninth Circuit held that Kennedy’s proportionality test applied only to “place” restrictions, such as the one in . “ he application of Justice Kennedy’s proportionality analysis to this particular type of second effects law would invalidate all such laws, and we are satisfied that he never intended such a result,” Judge Diarmuid O’Scannlain wrote for the court. The court then applied the test to the Arizona law. The court found that the law did not ban protected speech, was concerned with secondary effects of the businesses and allowed “ample alternative channels for communication” by permitting the businesses to operate 17 hours a day Monday through Saturday and 13 hours on Sunday. The court also considered the evidence on which lawmakers relied to adopt the regulation. The court conceded that the record “is a slim one” but that it compared favorably with the evidence considered in other cases in which other federal circuit courts have upheld time restrictions. “The question is whether the Arizona legislature relied on evidence ‘reasonably believed to be relevant’ in demonstrating a connection between its stated rationale and the protected speech, and we hold that it has done that here,” O’Scannlain wrote. “The Arizona Senate and House held public hearings at which lawmakers heard citizen testimony concerning the late night operation of sexually-oriented businesses and were briefed on several studies documenting secondary effects, and two of those studies were specific to late night operations.” Moreover, the business owners failed to show that the state’s approach or evidence were faulty. In his dissent, Justice William Canby Jr. said the court could not carve out an exception to Kennedy’s proportionality analysis. “Justice Kennedy has informed us that ‘a city may not attack secondary effects indirectly by attacking speech,’” Canby wrote. “A government similarly may not proceed on a theory that ‘it will reduce secondary effects by reducing speech in the same proportion.’ It would be hard to find a more exact description than this of Arizona’s closing hour regulation of adult entertainment establishments.” Canby also decried the record on which the law was based, particularly the “total absence of evidence anywhere in the record to support the existence of disproportionate secondary effects from operation on Sunday mornings before noon.” The Case: , Nos. 00-16858 and 00-16905, 03 C.D.O.S. 6603, 2003 DJDAR 8308. The Lawyers: For the adult business owners: G. Randall Garrou, Weston, Garrou & DeWitt, (310) 442-0072. For the government: Scott Boehm, Copple, Chamberlin, Boehm & Murphy, (602) 528-4719.

Opponents of a power plant near Blythe may proceed with a lawsuit that had been thrown out for being filed too late. The Fourth District Court of Appeal overturned a trial court ruling that the lawsuit was filed after the statute of limitations and had some harsh words for the California Energy Commission for creating confusion. On March 21, 2001, the Energy Commission issued a decision approving a power plant proposed by Blythe Energy LLC. That decision was filed with the Commission’s docket unit on March 26. Project opponents Alfredo Figueroa and Carmela Garnica filed a lawsuit challenging the project’s environmental impact report on May 11, 2001. The Energy Commission pointed to the Warren-Alquist State Energy Resources and Conservation Development Act (Public Resources Code § 25000 et seq.), which sets a 30-day statute of limitation for filing a lawsuit over a Commission decision. The Commission contended the 30-day clock began to run when the decision was filed with the docket unit on March 26; therefore, the lawsuit was filed too late. Riverside County Superior Court Judge Arjuna Saraydarian ruled for the Commission, but a unanimous three-judge panel of the Fourth District, Division Two, overturned the ruling. At issue was when the decision was “issued” or “ready for judicial review.” That would be the date when the 30-day statute of limitations started to run. The Commission argued the decision was ready for judicial review when the decision was filed with the docket unit. But the appellate court said things were not that straightforward. An Energy Commission regulation “provides that the effective date is the date of filing of the decision with the docket unit, if the Energy Commission’s decision specifies a different effective date,” Justice James Ward wrote for the court. In this case — even though the Commission’s counsel declared otherwise — the decision specified an effective date “30 days after its filing.” The Energy Commission argued that it simply adopted the normal rule of the regulation — not the exception — and pointed to language that said for reconsideration purposes the decision was “deemed adopted when filed with the Commission’s docket unit.” The Fourth District would not have it, though. “The Energy Commission created the confusion in the first place by using a mishmash of different terms without ever defining the term ‘issuance’ as used in Public Resources Code § 25901. The Energy Commission also contributed further to the misunderstanding by submitting an incorrect factual declaration,” Justice Ward wrote. “ The Energy Commission cannot exploit the ambiguity it created.” The lawsuit was returned to the trial court for further proceedings. The Case: , No. E030510, 03 C.D.O.S. 6585, 2003 DJDAR 8237. Filed July 25, 2003. Modified August 26, 2003 at 2003 DJDAR 9743. The Lawyers: For Figueroa: John Gabrielli, (530)753-0869. For the Energy Commission: William Chamberlain, Commission counsel, (916) 324-3237. For Blythe Energy LLC: Ward Benshoof, Weston, Benshoof, Rochefort, Rubalcava & MacCuish, (213) 576-1

The connection in people's minds between air pollution and urban development is getting stronger in Fresno. This summer, the City of Fresno settled a lawsuit filed by clean air advocates over the city's general plan. The city agreed to take a number of steps to encourage development that is less automobile-dependent than past projects, and the city committed $1 million to the effort. The settlement requires that the city collect information on development, transportation and air quality, and then make planning decisions using that information, said Patience Milrod, the Fresno attorney who represented a collection of medical professionals who filed the lawsuit.  "At this point, our general plan is a data-free document on questions related to air quality and transportation. It doesn't in any way marry those two," Milrod said. The city's commitment in the settlement, she said, "is not going to fix everything, but it's long overdue."  Fresno Development Department Director Nick Yovino did not characterize his general plan as "data free." For him, the settlement is only the next step in a major growth policy shift. The general plan, which the City Council adopted in November 2002 after years of debate and one major restart, places 80% of the city's growth through 2025 within the existing sphere of influence.  The plan provides for only one significant outward growth area, southeast of the city. The plan emphasizes infill development, new mixed-use centers, and vertical growth along Highway 41 through the heart of the city.  "The settlement, for us, is to follow through with the commitment we made in November," when the general plan was adopted, Yovino said.  The city began setting aside money for general plan implementation two years ago, and the settlement ensures the money gets spent as promised, he said.  "We've always had good plans. The problem has been implementing the plans," Yovino said. The lawsuit was filed in December 2002 by a group called Medical Advocates for Healthy Air (MAHA). The lawsuit contended the general plan "pays only lip service to addressing this enormous and pervasive problem , principally by listing certain policies and goals which are then left without identified implementation strategies, and without funding." Furthermore, the environmental impact report for the plan "failed to provide sufficient information to compare the project with a reasonable choice of alternatives." The point of the lawsuit was to get the city to investigate transportation options other than private automobiles.  "Maybe some of the alternatives are too expensive, but we don't know the cost because it wasn't analyzed," Dr. David Pepper, a member of MAHA, told the Fresno Bee when the lawsuit was filed.  The lawsuit did not exactly receive a friendly reception at City Hall, but a number of city officials share the same goal as the litigants: Plan for the type of growth that gets people out of their cars. Thus, settlement talks began almost immediately. The basis for the settlement is the "growth response study" (GRS) project being funded by Caltrans. Fresno is a demonstration city for the GRS initiative, which is supposed to generate regional traffic, transportation, land use and resource allocation data, models and methodologies. The city agreed to participate fully in the GPS, which is scheduled for completion in July 2004.  The city further agreed to use the tools the project identifies for six tasks:  Determining boundaries and definitions of activity centers and nodes  Establishing parameters for locating transit stations within each activity center and node  Defining the system of transit connections  Drafting zoning ordinance amendments that define and implement the mixed-use zoning districts.  Drafting a southeast growth area plan.  Drafting a specific plan for the Highway 41 mid-rise and high-rise corridor.  The city also agreed to put $1 million toward general plan implementation.  Milrod and other clean air advocates contend that the city has never had the political will to pursue city-centered development. She believes there is an untapped market in Fresno for urban, pedestrian-oriented, mixed-use developments. The city's top planner seems to agree.  One of his big priorities in implementing the general plan is a complete overhaul of the city's 43-year-old zoning code. The code is oriented toward the suburban-style development that has characterized Fresno and the surrounding areas for decades, Yovino said, and the code actually blocks some of the densities and mixed uses that the new general plan calls for. Those densities and mixed-use neighborhoods are part of the strategy for reducing automobile dependence. The zoning code overhaul will probably take two to three years.  "It will affect nearly every parcel in Fresno and probably will require an EIR," Yovino said.  Yovino said there is no doubt that people are making a connection between urban development and Fresno's air pollution, which has ranked fourth or fifth worst in the nation for several years. Milrod believes the lawsuit got the city's attention because medical professionals filed it. Decision-makers and the public listen when doctors and respiratory therapists say that air pollution is a major reason that one in six Fresno children has asthma and that asthma hospitalizes 12,000 people annually in the San Joaquin Valley.  "It's finally visible to the naked eye, which the mountains no longer are," Milrod said. "What that translates to in the form of individual choices — that's an educational process."  An unrelated lawsuit was filed in July over an air pollution control plan adopted this year by the San Joaquin Valley Air Pollution Control District and approved by the state Air Resources Control Board. Environmentalists and public health advocates contend the plan will not remove as much dust and soot from the air as the plan promises. Central Valley air pollution was also a topic of much controversy in the Legislature, which passed several bills addressing the issue (see front page story).  Contacts:  Patience Milrod, Medical Advocates for Healthy Air attorney, (442) 3111.  Nick Yovino, City of Fresno Development Department director, (559) 621-8003.  Fresno general plan: www.fresno.gov/development/general_plan/default.asp .

This summer, another huge ice shelf broke off the north polar ice cap and began drifting out to sea. The event made world news because it added to the mounting, tangible evidence of a phenomenon that the Bush administration ignores but that California’s government cannot afford to dismiss: Climate change. The effects of climate change — including rising sea levels and associated coastal flooding, the need for new and better levee systems inland, and greater extremes in wet and dry years — could affect many parts of daily life. But perhaps the most immediate effect for California is on the state’s water supply — not necessarily to the quantity because overall precipitation will not necessarily decline, but to storage and management of that supply. Water planners are grappling with the storage issue right now, according to Doug Osugi, water resource engineer with California’s Department of Water Resources. Osugi’s agency is in the middle of its mandatory, five-year update of the California Water Plan – a toothless but important informational tool that tells legislators of the status of this fundamental natural resource. For the first time since the plan was initiated during the 1950s, climate change has been elevated to chapter status in the plan, signaling the recognition among water experts that this emerging variable needs to have a part in the water supply calculus. “The primary change that the data is showing is a gradual decrease over the last 100 years of April through July runoff” says Osugi. “Other data indicate a corresponding increase in winter runoff.” In other words, more of the state’s precipitation is falling as rain, and less is coming down as snow. Ramifications of this shift in precipitation have big implications for the ways we store water. “Historically, California has been able to rely on snowpack to serve as a kind of storage system, delaying that precipitation that falls as snow from reaching downstream reservoirs until summer months, when reservoir capacity is more available, ” explained Jeff Loux, director of Land Use and Natural Resources at University of California, Davis Extension, and an expert in water planning. “Statewide, we are currently short of storage,” said Loux, who pointed out that when reservoirs are full, water is sent out to sea because there is no place to store it. The state of the art water management technique is conjunctive use of groundwater and surface storage supplies. “With conjunctive use, we can rely on surface water when it is available, and then switch to groundwater when reservoirs lower,” Loux said. But conjunctive use on a massive scale will require complicated new infrastructure and monitoring systems to carry out the difficult task of replenishing and withdrawing groundwater without long-term negative impacts. Detailed adjudication agreements amongst users will almost certainly be required, too. Concerns about adequate holding supply have always driven new surface storage projects. New dams, however, are politically unpopular and difficult to get permitted. Nevertheless, there are a handful of new generation reservoirs that either have or are soon to come on line. These include a planned expansion to Los Vaqueros Reservoir in Contra Costa County (see , August 2003), and the massive new Diamond Valley reservoir the Metropolitan Water District is filling in Riverside County. These newer reservoirs are called “off-stream” storage, and essentially function like huge bathtubs. Unlike traditional dams, which also generate hydroelectricity, off-stream reservoirs do not lie along main river branches. Instead, water is piped in from one or more sources to an isolated facility. In wet years, excess water can be stored in off-stream reservoirs to free up on-stream capacity. Desalination is another potential supply solution (see , February, 2002). However, some areas with the fastest growing thirst, such as San Bernardino and Riverside counties, are a long way from the ocean. Finally, there is the once taboo area of agriculture-urban water transfer. Agriculture remains the state’s biggest water user, consuming between 75% and 80% of supply, a figure that makes transfers appealing. But further reliance on water transfers has many planners wringing their hands because the practice may accelerate the demise of farming in California. Though agriculture is struggling with increased international competition, it remains the state’s top industry, and one with strong cultural and social qualities. Is anyone working on the demand side? “Not really,” said UCD’s Loux. “The assumption in the California Water Plan is that water agencies will endeavor to meet an expected continued growth in population. The good news is that the paradigm has shifted to the concept of water management versus developing new sources. But we get into this circular planning argument where conservation frees up more capacity to grow, which in turn creates more demand for water. It’s the classic vicious cycle.”

California’s judicial system uses a fast-track approach to bring cases to trial quickly, but the state’s plans to repair the aging courthouses in which trials are conducted are on a slow track. It is a case of maintenance deferred, leading to decrepit courtrooms and unsafe, seismically unfit buildings. Under the Trial Court Facilities Act of 2002, superior courts around the state are being transferred from county ownership to the state. The transfers should be completed by 2007, with the state taking over all but the most unsafe buildings. To fix the courthouses and provide for future growth, the state needs $6 billion, a hefty figure at a time of budget deficits. The Judicial Council, the state agency that oversees courts in California, had proposed a $4 billion bond measure for the November 2004 ballot to pay for deferred maintenance. However, the Legislature ignored all bond measures during its recent session as it grappled with the budget, according to Kim Davis, acting director of the Office of Court Construction and manager for the Administrative Office of the Courts, the staff arm of the Judicial Council. Davis said the Legislature could vote on the bond measure in January, providing enough time for it to make the November 2004 ballot. To help address the need for additional court facilities, filing fees and criminal fines increased at the beginning of this year and are expected to generate about $70 million a year for courthouse construction. Davis said that courts would need about $2 billion to prepare for growth over the next 20 years. Problems with courthouses include security, earthquake safety, access for persons with disabilities, and lack of space for juries and new courtrooms. The most frequently cited security concern is when in-custody defendants walk through courtroom halls in front of jurors and witnesses, with the potential to threaten those parties. Ideally, the prisoners would enter through a separate entrance. In 2000, a Judicial Council study found that of the 451 court facilities in the state, 41% have no way to bring jailed defendants to courtrooms without using public hallways. The same study found that 23 of the state’s 451 court facilities were in trailers, 25% percent of courtrooms had no space for a jury, 54% needed earthquake repairs, and 68% had inadequate security. Davis pointed to lax security at a courthouse in Marin County, where a judge was killed and an assistant district attorney was paralyzed in a 1970 shooting. She said the facility still has inadequate security today. The state government began taking over the courts in 1997, according to Mike Roddy, regional director of the Administrative Office of the Court in Central California, and former executive officer of the Sacramento County courts. Budgets and employee salaries are now paid by the states, rather than the counties, and taking over the facilities during the next four years is the final part of the process, he explained. Roddy spoke with while he drove to the offices of the San Joaquin County Superior Courts in Stockton, where he was beginning negotiations with that county as part of a program to turn over its facilities. San Joaquin is one of the three counties in the state (the others are Riverside and Solano) to participate in a pilot transfer program. After turning over their court facilities, counties will continue to provide maintenance-of-effort payments to the state. The payments will be capped at current levels, and the state will cover future growth and cost increases. In addition, each county is preparing a master plan for court growth over the next 20 years. Those plans are due by December. In San Bernardino County, officials are planning for 22 new judges and support staff by 2020, said Tressa Kentner, executive officer for the county’s courts. That’s in addition to the ongoing seismic retrofitting going on at the county’s courthouse in downtown San Bernardino and construction of a $4 million juvenile dependency court that began in June. Davis said such building is unusual for counties, with most waiting for the state to pay for upgrades when it eventually takes control of the facilities. Even with the improvements in San Bernardino, the backlog is tremendous. Kentner said of her county’s 14 court facilities, only 1 doesn’t need significant work. California Supreme Court Justice Ronald George told the State Bar convention in September that the courts were hit with a total of $104.5 million in budget cuts in this fiscal year, forcing reductions to programs intended to provide greater public access to the judicial system, among other things. With the state unable to maintain existing judicial services, money for better courthouses is likely to remain in short supply. And even if the bond measure gets on the ballot, there is no guarantee voters who have heard about nothing but state budget deficits for two years will approve it. Davis and others said they are unaware of any opposition to their proposal. Still, will a generation of California voters who were educated in portable classrooms really mind that court is conducted in a trailer? “I would hope we place some value on the third branch of government,” said Roddy. “Courthouses have historically been community symbols.” Kentner agrees that courts need to look nice and be safe. “People should have a sense what they’re doing there is valued and important,” she said. A safe and appealing courthouse adds to the vibrancy of cities’ economies, as lawyers seek offices and frequent nearby restaurants. Roddy said a study in San Diego indicated that having the main courthouse downtown was a major boost to the economy. And Kentner said that when the U.S. Bankruptcy Court and state Court of Appeal moved from San Bernardino to Riverside several years ago, it hurt the downtown San Bernardino economy to the benefit of Riverside. Contacts: Kim Davis, acting director, Office of Court Construction and manager, Administrative Office of the Courts, (415) 865-7971. Mike Roddy, regional director, Central California, Administrative Office of the Courts, (916)263-1900. Tressa Kentner, court executive officer, San Bernardino County, (909) 387-6500.

The City of San Jose Redevelopment Agency cannot use its power of eminent domain to escape from a contract that gave a company an exclusive right to negotiate a development agreement, the Sixth District Court of Appeal has ruled. The city could not use eminent domain because there was no real property involved — only a contract that did not establish an interest in real property, the unanimous three-judge panel held. The ruling is another setback in San Jose’s attempt to redevelop a downtown parking lot with a mixed-use project. While this litigation was proceeding, the company chosen by the agency to redevelop the site, Palladium Co. of New York, backed out of the project (see , May 2002). In 1997, the Redevelopment Agency entered into an agreement with San Jose Parking, Inc. (SJP) that gave the company an exclusive right for 10 years to negotiate a disposition and development agreement for the Fountain Alley parking lot. The company was also allowed to operate the parking lot and keep the revenues. In exchange, the company was to pay $25,000 per month for the first five years. If the city and SJP failed to reach a development agreement, the city would refund the monthly payments and half of the interest. Three years later, the Urban Land Institute provided the city with a study that identified the Fountain Alley parking lot as a key parcel in downtown redevelopment. The ULI recommended development of a mixed-use project with housing and shops. In January 2001, the agency entered into an exclusive negotiating agreement with Palladium for the proposed mixed-use project. The following month, SJP sued the agency, seeking a restraining order and demanding that the agency negotiate with SJP for the mixed-use development. In April, the agency filed its eminent domain action seeking to condemn SJP’s interest in the parking lot as established by the 1997 contract. An agency appraiser set the value of SJP’s interest at $3.7 million. After a trial, Santa Clara County Superior Court Judge William Martin ruled for the agency. On appeal from SJP, the Sixth District overturned the trial court’s ruling and held the agency could not acquire SJP’s interest via eminent domain. The agency presented numerous arguments to prove that its agreement with SJP conveyed an interest in real property as defined in Health and Safety Code § 33391. All of the arguments failed. “Since the Legislature has chosen to limit agency’s eminent domain power to the power to condemn real property while granting other entities the power to condemn property, whether real or personal, we think a strict interpretation of the meaning of real property is warranted,” Presiding Justice Conrad Rushing wrote. The agency argued that the contract was similar to an option to purchase. The court, however, ruled that a long line of cases established that “an option contract relating to the sale of land conveys no interest in the land.” Among other cases, the court cited , (1939) 14 Cal. 2d 73, , (1981) 123 Cal.App. 3d 701, and , (1882) 106 U.S. 252. The agency pointed to , (1974) 13 Cal.3d 684, in which the court held that the government’s taking of an unexercised option to purchase land was compensable. But the Sixth District held that only addressed the issues of compensation and fairness — not the power to condemn. The agency contended the agreement with SJP was similar to a lease. The court would not accept that argument, either. The agreement specifically stated that it did not grant SJP “any leasehold interest,” the court noted. Furthermore, as SJP’s monthly payments were potentially refundable, the agreement did not require the payment of rent, which the court called a “fundamental attribute of a lease.” The agency argued that the agreement had the attributes of a license. Again, though, the court ruled, “ ase law makes clear that licenses create no interest in real property.” Finally, the court addressed an argument put forth on the agency’s behalf by the California Redevelopment Association. The association contended the agreement’s language expressly stating that the agreement did not convey an interest in property was merely standard language that made clear the agency was not disposing of an interest in land. The court held that this argument supported the court’s conclusion: If the agency had not disposed of an interest in land, then there was no interest for the agency to condemn. The Case: , No. H024871, 03 C.D.O.S. 6740, 2003 DJDAR 8442. Filed July 29, 2003. Modified September 3, 2003 at 2003 DJDAR 9913. The Lawyers: For San Jose Parking: Norman Matteoni, Matteoni, Saxe & O’Laughlin, (408) 441-7800. For Superior Court: T. Brent Hawkins, McDonough, Holland & Allen, (916) 444-3900. For the agency: C. Donald McBride and Robert Fabela, city attorney’s office, (408) 277-

An outwardly conventional apartment complex in Orange County does not clamor for attention in the same way as an architectural milestone like Frank Gehry’s Walt Disney Concert Hall in downtown Los Angeles. But it might be that the suburban apartments, easily overlooked, will have a greater long-term impact on average Californians than L.A.’s spectacular new icon. Merely mentioning these two projects in the same breath — the cocoa-and-latte-colored apartments set on a landscaped slope in Aliso Viejo versus the titanium-clad clipper ship in full sail on Bunker Hill — seems incongruous if not laughable. And I am not suggesting the apartment house is a masterpiece comparable to Gehry’s $274 million concert hall, or even a masterpiece at all. What I am suggesting, however, is that the apartment complex opens new possibilities in combining high-density housing with open space, and that possibility may have more to say about our future way of life in urban California during coming decades than the gasp-inducing concert hall. For all its conventionality, City Lights in Aliso Viejo does a number of strikingly original things that suggest it is the developer’s carefully considered prototype. Shea Homes’ clear intent is to rethink the configuration of high-density apartments so that they are desirable to middle-income households. (The 792-unit project has a density of about 50 units per acre.) The most obvious innovation here is a centralized parking structure in the center of the site, around which the housing wraps like a square doughnut. Pedestrian bridges link the parking structure to units on all four levels, and in all four directions. For most people, the walk from the parking stall to the front door is no longer than a few hundred feet at most. And those bridges are not dark, scary tunnels but open-air catwalks with clear sightlines. Shea Senior Vice President Don Gause said that centralizing the parking was, in part, an attempt to find an alternative to podium housing, which requires developers to build a ground-level parking structure, and then build all the housing atop the structure. At the risk of sounding patronizing, I am not convinced that Shea Homes understands the full potential of its own invention. The really important aspect of this project — and its Bay Area counterpart in Dublin, Waterford Place — is the enormous freedom offered in site planning by separating parking from housing. With cars, garages and driveways out of the picture, the site planner could arrange residences into an old fashioned campus with courtyard housing, could string together row houses on the perimeter with an enormous green space in the middle, could use the conventional New Urbanist scheme of small, pedestrian-only streets, or could create nearly anything else. What is tantalizing here is the possibility of creating a private green where children may run or ride their bikes for long distances without having to negotiate car traffic. In the case of Waterford Place and City Lights, the developer has made a cautious step toward exploring the versatility of the car-free plan by arranging the units around courtyards. The concept is imperfect because not all units in these double-loaded corridors (like the traditional hotel arrangement with units on both sides of a central hallway) have a view into the courthyard. The courtyards themselves are not ideal. Four-story walls on all sides of a courtyard may make an otherwise pleasant space seem a little claustrophobic. But make no mistake: Even with its defects, this approach is an improvement over the long, narrow, hotel-like corridors of traditional apartment complexes. In other places of the site plan, we see that Shea has not taken full advantage of the open space opportunities afforded by the car-free site plan. The apartments are set back from the street behind a swath of suburban, neither-yours-nor-mind kind of landscaping that is less about providing usable space than establishing a spatial buffer between the units and the street. I saw the City Lights project during the same week in September when the festivities surrounding the long-awaited opening of Disney Hall were occurring amid fanfare. There was even an accompanying celebratory show of Gehry’s work at the Museum of Contemporary Art, across the street from the new concert hall in downtown Los Angeles. It is unfair to Gehry, a great inventor, to complain that his buildings are one-offs, just as it is ungracious to cavil at the concert hall, which is a jewel in the thread-bare fabric of downtown Los Angeles. But it is also time to think about the tension in architecture between buildings that are unique and buildings that are prototypes. Arguing that architects should focus on useful prototypes rather than unique art objects has obvious limitations: Are we supposed to criticize the Parthenon or Michelangelo’s dome at St. Peter’s in Rome because they cannot be reproduced economically on every other street corner by cost-cutting developers? Where the argument gains traction, perhaps, is as a counter-balance to the value system of architects and their status-seeking clients that now places a higher premium on monument-making than on solutions that could affect the lives of millions of people, both living and unborn. A reasonable person will shrug shoulders and say the world is big enough for both masterpieces and production housing. True enough. Yet that is not the end of the story. While I doubt that City Lights has the potential to make the history books in the same way as Disney Hall — the latter’s masterpiece status already has been vouchsafed — City Lights may be part of a long line of projects that value open space and pedestrian-oriented living. When a national builder such as Shea commits itself to these values, that is a signal that the market is prepared to accept some new ideas about high-density housing, and that ideas formerly dismissed by commercial types as “impractical” and “unfeasible” have a chance of entering the mainstream. Presciently, Shea seems to understand that single-family housing in much of California is becoming out of reach for all but the rich. The challenge to builders is to devise a better “product” for upscale renters, although there is no reason why the same basic strategy would not be available to builders of affordable homes. Simply for opening new possibilities for large commercial builders, City Lights’ contribution should not be overlooked.

It's perhaps premature to ask what changes smut peddler Larry Flynt would make to the General Plan Guidelines, or where buxom billboard celebrity Angelyne stands on the latest wrinkles in the California Environmental Quality Act. But with the recall election only a month away -- and two statewide propositions on the special ballot along with the recall -- it's not too early to speculate on how the whole October 7 circus will affect the world of planning and development in California. The circus comes at an interesting time, and it has intriguing components. Though never a strong advocate of land use reform, Democratic Gov. Gray Davis has gradually begun to tackle land use and growth issues, partly because of legislative mandates and partly because of the inclinations of his appointees. Prior to the recall, the conventional wisdom was that most of his likely Democratic successors — including Treasurer Phil Angelides and Attorney General Bill Lockyer — would probably tackle land use issues head-on. But a light recession, a deep budget deficit, and a different governor could throw that assumption out the window. Perhaps the most overlooked part of the October 7 ballot is Proposition 53, which would earmark 1% of the state's general fund for infrastructure investment. Voters might not notice Proposition 53 at all, given the recall circus and the presence of Proposition 54, Ward Connerly's controversial ballot measure restricting the collection of racial and ethnic data, which is sure to get far more publicity. As governor, Davis is responsible for implementing one of the most important growth policy changes in California during the last decade — AB 857, which requires state agencies to pursue infill development, compact greenfield development, and agriculture and open space protection as statewide goals (see CP&DR, October 2002). Davis placed the Governor's Office of Planning and Research in charge of implementation and, in a related move, promised to issue the Environmental Goals and Policies Report, which essentially serves as the governor's growth policy statement. No governor has issued this report in 25 years, not even Davis's predecessor Pete Wilson, who as a lawmaker carried the legislation requiring it. The AB 857 implementation plan is required to go to the Legislature this fall. But if Davis is out of office on October 7, what will happen to these efforts? If Lt. Gov. Cruz Bustamante succeeds Davis, the efforts might continue. However, Bustamante has already begun to distance himself from Davis — in supporting a repeal of the car-tax increase, for example — so he might take a different approach on growth as well. The conventional Republican politicians in the race are mostly conservative. In his race against Davis last year, Bill Simon issued a thoughtful and comprehensive — though very market-oriented — policy paper on housing and growth (see , September 2002). State Sen. Tom McClintock, an anti-tax activist, can be counted on to toe the anti-regulation line. As for Arnold Schwarzenegger, he has not tipped his hand yet about planning and development or, indeed, many policy issues at all. And he may not do so before the election. Yet despite the hype surrounding his campaign, Schwarzenegger may take growth policy seriously. His position as a moderate Republican -- and his experience as a real estate investor -- makes for an intriguing set of possibilities. Schwarzenegger is positioning himself as a fiscal conservative and a social liberal. He's also relying heavily on political advisors to former Gov. Wilson. Although land use reform at the state level typically is viewed as a Democratic issue, moderate Republicans are often the most credible purveyors of innovative land use ideas. Wilson was a growth management mayor in San Diego and went to Sacramento with a strong land use reform agenda. In the 1980s, New Jersey's land use reform was engineered by Tom Kean, a moderate Republican governor. And while Florida's growth management law was signed by Democratic Gov. Bob Graham, it was largely implemented by his moderate Republican successor, Bob Martinez. Still, it is not surprising that moderate governors often get caught up in hardball Republican politics on land use issues sooner or later, especially if a recession is looming and Republicans want to hammer development regulations as the cause. Wilson got sidetracked from land use reform by a recession, a budget deficit, and his need to cater to Republican right-wing legislators. Martinez had to back off of Graham's deal to place a sales tax on services to pay for infrastructure required by the Florida growth management law, a move that harmed the law's effectiveness from the get-go. Schwarzenegger has no policy record except his support of an initiative favoring preschool funding last year. Yet his track record as a business investor suggests that he has a working knowledge of both greenfield and infill development issues. His portfolio features several major investments in development projects. The actor owns a big chunk of Santa Monica's Main Street and also invests in the construction of AMC movie theaters — both of which have benefited from a wide variety of public urban development subsidies. He also has major investments in a shopping mall near Akron, Ohio, and a real estate investment company focusing on the Sorrento Mesa area north of San Diego. Obviously, Schwarzenegger's approach would be driven in part by his appointees and in part by practical politics. If he selects moderate Republicans as cabinet secretaries and department heads — as Wilson did, at the beginning of his administration — then we might see further movement on implementing AB 857, reforming CEQA to favor infill projects, and the like. If Schwarzenegger himself is personally interested in these issues — as he might be, given his business record — then we might see the kind of gubernatorial shove these issues often need to move forward. If, on the other hand, Schwarzenegger finds himself in the same kind of situation that trapped Wilson — needing caveman Republicans in the Legislature to pass a budget, especially during a recession — he might find growth policy expendable. A lot depends on the perception of who has got political power after the recall. Gov. Schwarzenegger would have much more clout if he wins with 45% of the vote rather than 15%. Although we don't know where Arnold is coming from, we should not overlook the candidates who have taken on planning and development issues head-on in this campaign. In an interview in the , former child actor Gary Coleman positioned himself as strongly pro-infill and even called for a return of the days of urban renewal. "We got so much land that's not being used; we could do so much with that," he told the . "We could move people away for a year and bring them back into something nice. Move a thousand people out, make sure you leave enough space for them to come back, but you've added value to the place, a new mini-mall, a couple of hundred more houses." He also positioned himself in favor of express buses and light rail. So far this stance has not given Coleman's campaign much traction. Then there is the hilarious columnist Steve Lopez, who is running a write-in campaign as an ongoing joke in his column. Lopez has not been afraid to deal with land use in the campaign. When the Coastal Commission was considering whether to legalize a Malibu pitch-and-putt golf course built illegally by big Davis contributor Jerrold Perenchio, S-Lo figured he could wheedle a big contribution out of Perenchio too. He showed up at Perenchio's house with his clubs but was turned away at the security gate. True to form, S-Lo holed out from a weed patch in the middle of Pacific Coast Highway. As for Angelyne, we assume she's against restrictions on billboards.