An unusual collection of more than 30 farm groups, environmental organizations and regulatory agencies has signed onto a California Rangelands Coalition, marking the first time that some of the entities have worked together. The disparate groups — many of which have clashed in the past — have pledged to work cooperatively to preserve and enhance rangeland for the good of the ranching industry, and for the health of plants and wildlife. An undercurrent of the agreement is that development needs to steer clear of rangeland. The coalition is focused on the ring of foothills around the 400-mile-long Central Valley, a region that includes pieces of 28 counties. So far, Alameda County is the only county to sign the coalition’s California Rangeland Resolution. Other county governments could soon be hearing from the coalition. “Even if we don’t agree on land management or land use,” said Karen Sweet, executive officer of the Alameda County Resource Conservation District, “we agree that the worst thing that can happen is development. We’re going to have to find ways to keep agriculture viable.” “There is definitely pressure to put houses in areas that are ranchland. Both environmentalists and ranchers would like to prevent that,” added Alex Pitts, a spokeswoman for the U.S. Fish and Wildlife Service. Although the coalition is emerging as an advocacy group, it was the Fish and Wildlife Service that helped create it. Steve Thompson, operations manager of the agency’s California-Nevada office, found that he was receiving similar correspondence from ranchers and environmentalists. Both interests have a strong desire to preserve rural landscapes, albeit for different reasons. Ranchers sought incentives for preserving and improving ranchland for the sake of agriculture; environmentalists sought preservation of the same lands for the benefit of plants and wildlife. Thompson brought representatives of numerous groups together for a meeting in the Alameda County community of Sunol last fall. The representatives soon found that they agree on 95% of issues, said Tracy Schohr, director of industrial affairs for the California Cattlemen’s Association. By January, the groups had settled on a rangeland resolution that calls for: • Keeping common species common on private working landscapes. • Working to recover rare species and enhancing habitat on rangeland, while minimizing regulation. • Providing economic, social and other incentives to keep ranchers in business. • Increasing private, state and federal funding for practices that benefit sensitive species and ranching. • Encouraging voluntary, locally led conservation efforts. Among the groups that have signed the resolution are the Cattlemen’s Association, the California Farm Bureau Federation, the California Rangeland Trust, the Fish and Wildlife Service, state departments of Conservation, Fish and Game, and Food and Agriculture, Defenders of Wildlife, The Nature Conservancy, Environmental Defense and the Trust for Public Land. The coalition’s first priority is to lobby in Washington, D.C., for funding from the 2007 farm bill. The coalition would like to see more federal money for conservation easements and for programs that enhance rangelands. In fact, the debate over the farm bill is largely about whether the federal government should pay for commodities or farmland conservation, said Alvin Sokolow, a semi-retired professor at University of California, Davis. Because California grows few commodities, it has traditionally not received a large amount of farm subsidies, even though California is the nation’s leading agricultural state. In 2003, California farmers received $97.2 million from the Department of Agriculture’s Natural Resources Conservation Service, according to Sokolow. But that represented only about 5% of funding nationwide from the federal conservation reserve program, which mostly pays farmers to idle cropland. “The argument is being made by ranching advocates that ranchers are the best stewards of the land, rather than public owners,” Sokolow said. “I think the argument is accurate, especially when comparing ranchland to cropland.” Besides more money, the coalition would like to see a streamlining of regulations, or at least a new approach to enforcement. This would fall into the concept of “safe harbors.” As it now stands, landowners who undertake projects that aid endangered species can get stuck in a difficult regulatory bureaucracy, even though the species would receive no benefits if not for the ranching project, Schohr said. Ranchers can spend two years getting various approvals for fairly simple projects, such as building new stock ponds, that also happen to be good for a rare species. Pitts said the Fish and Wildlife Service recognizes the argument, and the agency is comfortable with safe harbor agreements. “That habitat wouldn’t exist if not for ranching,” she said. Kim Delfino, California program director for Defenders of Wildlife, said conservation groups involved with the coalition do a lot of work on grasslands and vernal pools, which are small, seasonal wetlands that some species rely on for survival. Scientific studies have shown that grazing is a good technique for controlling non-native species in grasslands and for protecting vernal pools, Delfino said. Still, the bottom-line issue is land use. Environmentalists and, at times, farmers and the state Department of Conservation have used conservation easements to steer development in certain directions, limit new areas of development, or establish buffers between cities. And conservation easements — in which development rights are essentially retired in exchange for a one-time payment — are not universally accepted. Ted James, planning director in Kern County, which has vast stretches of grazing land, noted that ranchers in his area are suspicious of such easements because they limit property rights. John Hofmann, director of natural resources for the Regional Council of Rural Counties, also expressed skepticism about conservation easements. “I’m just not convinced that a conservation easement is a good deal for the people who own the land,” Hofmann said. “That money doesn’t come in perpetuity, but the conservation easement is in perpetuity.” The purchase of an easement does not ensure that agricultural lands remain productive, he noted. Moreover, counties often do not learn about conservation easements until they are already in place, and the landowner is applying to the county for a permanent property tax break. “Maybe we had that land zoned for development,” Hofmann said. “Now we are having to find a new place for development. It takes some of the planning flexibility out of local government’s hands.” It is not uncommon for grazing land to be targeted for development precisely because the soils do not qualify as “prime farmland” or “farmland of statewide importance.” Delfino conceded that the local government piece of the ranchland preservation effort is an issue the coalition needs to address over the long term. Schohr, of the Cattlemen’s Association, said the group has purposefully avoided specifics of local land use thus far. “It’s taken a lot of time to decide on the policies that we want to change,” she added. “We think ranching on the private lands in the Central Valley and surrounding foothills areas is environmentally beneficial,” Delfino summed up. “When you’re looking at the amount of development in the Central Valley, and the conversion of ranchlands into housing, it’s a concern.” Contacts: Tracy Schohr, California Cattlemen’s Association, (916) 444-0845. Kim Delfino, Defenders of Wildlife, (916) 313-5800. Karen Sweet, Alameda County Resource Conservation District, (925) 371-0154. Alvin Sokolow, University of California, Davis, (530) 752-0979. John Hofmann, Regional Council of Rural Counties, (916) 447-4806.

A Santa Barbara County property owner’s takings claim has received new life, thanks to a Second District Court of Appeal ruling. The appellate panel overturned a lower court that had ruled the property owner filed the claim too soon. The trial court had determined the takings lawsuit was not “ripe” for a judicial decision because the level of development Santa Barbara County would permit on the six-acre site was unknown. Without a final answer from the county, the lawsuit could not go forward, the trial court ruled. The Second District, however, found that the county had made clear exactly how much development it would permit, meaning that the property owner had his final answer and the lawsuit could proceed. The appellate court made no decision on the merits of the takings argument. At issue is a parcel in the unincorporated coastal town of Summerland, a few miles east of Santa Barbara. In 1995, the property owner, David Dunn, submitted an application to divide the parcel into two three-acre lots. The existing six-acre lot was created via a 1986 parcel map and had two potential building envelopes on either side of an active earthquake fault. The property lies in the coastal zone, so it is subject to the Coastal Act and the county’s local coastal plan (LCP). After preparation of an environmental impact report (which was never certified), the county denied the lot-split application. Biologists had identified about one-sixth of an acre of wetlands on the property, and, despite the 1986 parcel map, setbacks from the wetlands and the coastal bluff made it impossible to locate a second building site, the county determined. Additionally, grading for development would likely result in loss of some wetlands, according to the county. Dunn sued. He alleged that the county had violated his constitutional and civil rights by carrying out a physical and regulatory taking of his property. In early 2004, Santa Barbara County Superior Court Judge J. William McLafferty ruled that there had been no physical taking of the property, and that the regulatory takings claim was unripe. A unanimous three-judge panel of the Second District, Division Six, upheld Judge McLafferty on the claim of physical taking, but overruled the decision on the regulatory takings. In finding the regulatory takings claims premature, McLafferty had said uncertainty “exists with respect to the scope of any development project which would be allowed on the remaining existing building envelope” because of setback requirements and wetlands protections. He also said the county could consider rezoning or a variance, or permit minor development in otherwise protected areas. But the Second District, pointing to the denial of the lot split application, said the county had in fact made up its mind. Under , (2001) 533 U.S. 606 (see , August 2001), a property owner need not submit “‘further and futile applications,’” the court ruled. “The county has made clear that only one viable building site remains after the application of its regulations, and that Dunn will be allowed to build a single-family residence on that site,” Justice Steven Perren wrote for the court. “Because the county has stated that it will not allow Dunn to subdivide his property, and that it will allow him to build only one residence on the remaining building site, the permissible use of the property is known to a reasonable degree of certainty. Accordingly, the takings claims are ripe for review.” In portions of the ruling upholding the Superior Court decision, the Second District backed the county’s designation of wetlands and environmentally sensitive habitat areas (ESHA) on Dunn’s property. Dunn had argued that the wetlands have no environmental value. The court pointed out that Dunn’s own biological consultant recognized the areas in question contain the attributes of wetlands. There was also evidence that a number of animal species rely on the wetlands, the court noted. Plus, the court ruled, under the Coastal Act, all wetlands — no matter their quality — are deserving of protection. The Coastal Act also mandates protection of ESHA. Dunn argued that the county’s definition of ESHA was too broad and the regulations too restrictive. “Nothing in Dunn’s briefs,” Perren wrote, “demonstrates that the wetlands on his property are not entitled to this heightened protection.” The case now returns to Superior Court for consideration of the takings claim. The Case: , No. B175149, 06 C.D.O.S. 781, 2006 DJDAR 1023. Filed January 25, 2006. The Lawyers; For Dunn: Diane Matsinger, Hatch & Parent, (805) 560-8808. For the county: Kelly Casillas, county counsel’s office, (805) 568-2950.

A settlement that Rohnert Park signed to resolve a lawsuit over the city’s general plan did not illegally abridge the city’s police power, the First District Court of Appeal has ruled. Two development companies argued that the city surrendered its police power by approving a lawsuit settlement calling for the city to remove the developers’ land from the city’s sphere of influence. The First District disagreed, ruling that the settlement did not grant an outside party veto power over the general plan. The developers, 108 Holdings, Ltd., and SC Forty Acres, Inc., in March asked the state Supreme Court to accept the case. The appellate court’s ruling addresses what can be a tricky situation, said Susan Brandt-Hawley, an attorney for a citizens group that had sued Rohnert Park. Generally, all parties want to resolve land use litigation with settlements, she said. The tricky part is crafting a settlement that does not impinge on a local government’s land use authority. In this instance, the City Council considered the settlement agreement in open session, and the agreement does not limit future general plan amendments. The First District ruling, Brandt-Hawley said, shows that it is acceptable for a government agency to settle a lawsuit with environmental groups, even if the settlement is a long-term agreement to protect the environment. Rohnert Park adopted a new general plan in July 2000. The plan placed 137 acres of unincorporated land near the community of Penngrove within the city’s sphere of influence, and designated a portion of the land for industrial development. Later that year, voters approved a city-sponsored ballot measure establishing an urban growth boundary. About 100 acres of the property in question lies within the boundary. In March 2002, the Sonoma County Local Agency Formation Commission (LAFCO) approved the city’s application to expand its sphere of influence to take in the entire 137 acres. Shortly after the city adopted the general plan, however, a group called South County Resource Preservation Committee (the real parties in interest in the case at hand) sued the city on a number of grounds. The group argued primarily that the general plan’s environmental impact report was inadequate. In August 2002 — after LAFCO had approved an expanded sphere of influence — the City Council approved a settlement agreement and stipulated judgment, which the Superior Court accepted the following month. The settlement with the environmental group called for the city to apply to LAFCO for removal of the developers’ land from the city’s sphere of influence, and to interpret in certain ways general plan policies regarding groundwater conservation, the availability of water to serve new development, community design and traffic. Following the terms of the settlement, the city then approved a general plan amendment removing the developers’ property from the sphere of influence. The developers sued, arguing that the city had delegated its police power. The developers also contended the settlement amounted to a general plan amendment that should have been subject to environmental review. The Sonoma County Superior Court ruled for the city, and the First District, Division Five, upheld the decision. In the First District opinion, Justice Lawrence Stevens pointed out that a municipality may not contract away its legislative functions, and that adoption and amendment of a general plan are legislative acts. The developers argued that the city had negotiated away its legislative authority. They cited , (1998) 62 Cal.App.4th, 727 (see , May 1998), and , (1995) 38 Cal.App.4th 1716 (see , November 1995). concerned a San Diego County agreement for a 15-year moratorium on rent control legislation with respect to mobile home park owners who signed an accord with the county. The court threw out the agreement as an unlawful surrender of the police power. concerned a memorandum of understanding (MOU) that Hayward, Pleasanton and Alameda County signed regarding a parcel of land that lay within all three jurisdictions. Under the MOU, there could be no further amendments to any of the three entities’ general plans for the parcel unless all three entities agreed. The court held the MOU was an unlawful surrender of the police power because it gave another jurisdiction veto power over a local government’s general plan amendments. However, the First District found those cases different from the Rohnert Park case. “In contrast to the MOU at issue in Alameda County, the settlement agreement and stipulated judgment do not grant real parties in interest (or anyone else) veto power over future general plan amendments,” Justice Stevens wrote. “To the contrary, the stipulated judgment places no restrictions on the city’s exercise of its police power in the future. There is simply no basis for concluding that, in entering into the settlement agreement and stipulated judgment, the city has sacrificed the ‘crucial control element’ that is the hallmark of an improper surrender of police power,” Stevens continued, citing . The court then considered the argument that the settlement amounted to a general plan amendment. The court conceded that changing the sphere of influence was a general plan amendment. The developers argued that action was “tainted” because it was “dictated entirely by the terms of a private contractual agreement.” The court disagreed, noting that the city conducted the required administrative process. “ he city’s action is reviewable only by the electorate, not the courts,” Stevens wrote. The developers further argued that the settlement was a general plan amendment because it requires the city to interpret the general plan in certain ways. The court again disagreed, finding “most of the provisions to which 108 Holdings object to be little more than restatements of policies that are already part of the general plan.” The Case: , No. A108629, 06 C.D.O.S. 970, 2006 DJDAR 1304. Filed January 31, 2006. The Lawyers; For 108 Holdings: Tracy Kirkham, Cooper & Kirkham, (415) 788-3030. For the city: Michelle Marchetta Kenyon, McDonough, Holland & Allen, (510) 273-8780. For South County Resource Preservation Committee: Susan Brandt-Hawley, (707) 938-3908.

It was a case of hopeless infatuation in 2001, when the City of Los Angeles finally landed a developer who was rich and optimistically cock-eyed enough to build that long-dreamed-of-but-never-consummated project, the convention center hotel. I can imagine the late Peter Arno, a 1940s-era cartoonist for , depicting the city as a doting old millionaire and the developer as a street-smart showgirl. “I’ll give you anything you want, if you just grant me this one happiness!” says the infatuated old geezer. “Well, sweetums,” says the young thing, who is nobody’s fool, “if it weren’t asking too much….” Now, Los Angeles is getting the hotel, and a whole lot more. The developer calls the 28-acre project LA Live. Snuggling up to a planned 56-story hostelry will be the 7,000-seat Nokia Theater, fronted by the acre-sized Nokia Plaza. The plaza will be the public centerpiece, illuminated with 90-foot light towers and programmed with live performances and a giant video projection screen, which will be either 45 feet or 90 feet tall. Surrounding the plaza will be white-tablecloth restaurants, retail, a 15-screen multiplex cinema and the Conga Club, a Latin-themed night spot co-owned by actor Jimmy Smits. The developers call LA Live a “content campus.” I call it a revenue-capture machine designed to lure droves of conventioneers, and concert-goers and sports fans attending events at nearby Staples Center arena. There is very little else going on in this southern corner of downtown L.A. at night, and if the developers of LA Live have their way, there won’t be much happening anywhere else downtown, either. As conceived by AEG, the development outfit led by Denver billionaire Philip Anschutz, LA Live might be described as a self-contained sports, entertainment and restaurant district intended to enliven the area that will lie in the shadow of the new hotel. The $4.2-billion project is touted by its developers as the largest single development project in the history of the city. The same developer completed the Staples Center arena seven years ago, and has been buying up land in the immediate area ever since. Part of that budget is at least $250 million in city subsidies to build the hotel. That amount does not include about $70 million in bond proceeds the city made available to the developer to buy the hotel site five years ago. In the belief that convention centers are big moneymakers for cities, Los Angeles spent nearly $500 million during the 1990s to expand the existing convention center, which has done only fair-to-good business since. The lack of a large hotel within the immediate vicinity was a stumbling block to signing the really big conventions and trade shows, according to the local tourism and convention board. Dutifully, the city has courted a series of developers off and on during the past two decades, only to see those budding romances wither when the subject of subsidies arose. By far the biggest part of the subsidy package, beyond a few million dollars in fee waivers, is a rebate of the city’s 14% transient occupancy tax over a 25-year period starting in 2008, when hotel occupancy is expected to stabilize. In absolute dollars, that amount comes out to a breathtaking $246 million, although real estate people generally use a discount rate of 10% to translate the value of those future dollars into present-day value, which is more like $64 million. The city authorized the subsidies in 2005 despite a recent report from the Brookings Institution that described such subsidies as a bad investment. “With the possible exception of a handful of major cities that have long dominated the national and regional economies and a very small number of prime visitor destinations like Orlando and Las Vegas, the grand promises of convention center investment are unlikely to be realize, the strategy doomed to failure,” the report stated. To refute the report, the city hired PKF Consulting, which said in a September 2005 letter that Los Angeles “meets both criteria” indicated by the Brookings report insofar that Los Angeles is a “major city that has long dominated the national and regional economies, as well as a prime visitor destination.” By this rhetorical sleight of hand, PKF made the Brookings report sound like a tacit endorsement for a subsidized convention-center hotel. Criticism of the concept aside, there are some good design ideas at LA Live. Starting with the monolithic superblock assembled by the developer, the architectural firm of RTKL invades the site with several mid-block openings, breaking the superblock into six big pieces separated by shopping streets and/or vehicular circulation. Breaking down the unworkable scale of the grid is an idea worth exploring elsewhere in downtown Los Angeles, which is a dreary place to walk partly because blocks are so long. Good design ideas, however, cannot salvage a bad concept. The whole notion of an entertainment center seems like bad urbanism. It seems especially unfortunate to introduce one more hulking megastructure into the South Park neighborhood, next to existing megastructures like the sports arena and the convention center. This is inflexible, over-scaled urbanism in what planners have long designated a residential area. Especially disappointing in a downtown area is a promising public space like Nokia Plaza, which the developer wants to drown in media glitz and marketing. That kind of stuff is exciting in a trade show or on the Vegas Strip. It is out-of-place in a densely populated residential district. LA Live is almost guaranteed to add value to the arena and the convention center, but it may not serve downtown as a whole. Many tourists and suburban concertgoers may never see anything more of downtown than the inside of this noisy, hyper-commercial environment, which would be very similar to many other noisy, garish places across the country. To let this project go forward is one of the prices we pay for a free-market system. To subsidize it with public money seems self-defeating. LA Live will probably be a great asset for Phil Anschutz, but it is no gift to the city.

Two new chapters have been written in one of California’s longest-running environmental dramas. The latest installments lack the emotional wallop of earlier parts, which featured celebrities, death and torture, but may ultimately prove more significant. On January 30, the state Supreme Court upheld the authority of state water boards to regulate logging activities that have the potential to degrade streams. The ruling was a rebuke to Pacific Lumber Co. (PALCO), which had argued that the Forest Practice Act granted the California Department of Forestry and Fire Protection (CDF) sole authority to regulate logging. In a blunt assessment, the justices concluded that PALCO’s interpretation of the law “makes no sense.” The much-vilified Humboldt County logging company fared better at the hands of the First District Court of Appeal. In December, the appellate court overturned a trial court ruling and reinstated the controversial set of plans and permits negotiated as part of PALCO’s $480 million deal with state and federal agencies to protect the Headwaters grove of old-growth redwoods. Perhaps the most significant element of that ruling was the court’s upholding of the “no surprises” assurance attached to an incidental take permit issued under the California Endangered Species Act. The permit authorized the company to kill protected species in the course of its operations, in exchange for development of a habitat conservation plan (HCP) that would boost protections elsewhere. No-surprises assurances typically immunize permit recipients from future changes in mitigation requirements, even if new information or changed circumstances suggest the adopted measures may not be adequate. Although contested by environmental groups and criticized by biologists, “no surprises” has been a cornerstone of the HCP process since the mid-1990s, serving as an incentive for landowners to participate in the program. Both court cases grew out of the 1996 Headwaters forest agreement, intended to resolve a bitter, drawn-out and violent dispute over forest management. The agreement transferred about 7,000 acres of old-growth redwoods in Northern California from PALCO’s hands into public ownership for $480 million in state and federal money. Certainty was one of the major goals for both sides in the deal. The company retained ownership of more than 200,000 acres of adjacent timber land, home to a number of endangered or rare species. Conservationists wanted assurances that logging on that land would not imperil those creatures. For its part, the company wanted to end the tree-by-tree warfare with protesters and their attorneys that had hobbled PALCO’s efforts to meet timber production goals. The Headwaters deal included a commitment by the company to adopt an HCP for its remaining Humboldt County property, limiting logging to protect such species as coho salmon, the northern spotted owl and the marbled murrelet. Based on that HCP, the company received approval for a sustained-yield logging plan, federal and state incidental-take permits, and a streambed alteration agreement. The Sierra Club and the Environmental Protection Information Center, a Garberville-based organization that has been a thorn in PALCO’s side for years, sued in March 1999. The plaintiffs challenged CDF’s approval of the sustained-yield plan, the issuance of the incidental-take permit and approval of the streambed alteration agreement by the Department of Fish and Game (DFG), and the findings issued by both state agencies under the California Environmental Quality Act. The plaintiffs alleged that the state agencies had failed to follow proper procedures, and they contended that the incidental-take permits failed to include sufficient steps to offset harm to imperiled species. With respect to the no-surprises assurance, the plaintiffs argued that by agreeing not to change the mitigation requirements during the 50-year life of the permit, DFG was violating its legal obligation to ensure full mitigation of harm to rare species. The Humboldt County Superior Court ruled in the environmentalists’ favor in July 2003, throwing out the plans and permits and bringing a halt to further logging. PALCO appealed, and in December won on most of the disputed items. The appeals court found that the state agencies had for the most part acted properly, and that the no-surprises assurance was legal. Despite the longstanding controversy over HCPs, the First District’s decision was one of the first published state court opinions regarding the no-surprises rule, making the decision a noteworthy rarity (see August 2004). The justices did find, however, that DFG had overstepped its bounds when it included 13 unlisted species in the incidental-take permit, relieving PALCO of any responsibility for additional mitigation if those species were listed in the future. Incidental-take permits can be issued only if the agency determines that such action will not jeopardize the species’ continued existence, and there’s no way to make such a determination in advance, the court ruled. Rather than invalidate the entire incidental-take permit, however, the court ruled that the section pertaining to the unlisted species should be stricken and the remaining provisions should remain in force. The plaintiffs have asked the Supreme Court to take up the case. PALCO did not fare as well in its other case, which concerned a timber harvest plan adopted for about 700 acres in the Elk River watershed that the company acquired through the Headwaters negotiations. The CDF approved the plan, finding that it included adequate steps to protect streams from contamination by sediment, but the North Coast Regional Water Quality Control Board disagreed. It issued an order requiring the company to conduct substantial monitoring to make sure the Elk River remained unimpaired. PALCO appealed to the State Water Resources Control Board, which upheld the regional board. The company then sued the state board, arguing that the Forest Practice Act pre-empted the water board’s authority to regulate activity carried out under an approved timber harvest plan. The trial court agreed, but that ruling was overturned on appeal. PALCO then took the case to the Supreme Court, where the justices made quick work of the company’s argument. The Forest Practice Act, they pointed out, does not grant CDF authority to supersede the water boards in regulating water quality. In fact, it contains language specifically stating that “no provision” of the logging law limits the power of other agencies to carry out their legal mandates. “We take the phrase ‘no provision’ to mean what it says, that nothing within the Forest Practice Act … implicitly bars the water boards from fulfilling their independent obligations,” the justices ruled. Contacts: Pacific Lumber Company, (707) 764-2222. Environmental Protection Information Center, (707) 923-2931. The cases: , No. A104828, 05 C.D.O.S. 10468, 2005 DJDAR 14291. , No. S124464, 06 C.D.O.S. 886, 2006 DJDAR 1195.

In recent years, matters related to planning and development have not appeared at the top of state lawmakers’ agenda. But 2006 is different. Spurred by Gov. Schwarzenegger’s pitch for an infrastructure investment package, the Legislature has tackled infrastructure and related financing with an almost single-minded determination. Besides the governor’s proposal, which is contained in numerous bills, Democrats and Republicans have introduced counterproposals contained in other pieces of legislation. Policy committees and a conference committee met regularly during late January and all of February to dissect the governor’s proposal and craft responses. Los Angeles state Sen. Kevin Murray, co-chairman of the Conference Committee on Infrastructure Bonds, said the committee could start meeting daily this month. “Everybody is waiting for the infrastructure conference committee to go forward,” said Sande George, lobbyist for the California Chapter of the American Planning Association. “The attention is all on that because it’s the only thing happening.” What the infrastructure package will look like is unknown, as everything — including the amount of bonds — appears to be in play. Although the governor proposed very little money for natural resources and parks, and no money for housing, Democrats are insisting that investment in those areas is essential. Both Republicans and Democrats have expressed concern about the size of the governor’s $68 billion, 10-year bond package. Neither Democrats nor Republicans are rushing to embrace the governor’s plan for building new prisons and jails. The infrastructure discussion is so far-reaching that it even includes proposed California Environmental Quality Act (CEQA) amendments and a plan to make local governments liable for Central Valley levees. Aside from the infrastructure discussion, lawmakers are considering the largest changes to the Community Redevelopment Law since 1993. The Democrat-backed redevelopment changes appear to have a much better chance of passing than Republican-authored restrictions on eminent domain. As originally proposed, the governor’s infrastructure package provided virtually no money for natural resources, open space and parks. Sen. Sheila Kuehl (D-Santa Monica), the chair of the Senate Natural Resources and Water Committee, said during a late February committee meeting that the governor’s plan undervalues natural resources. Kuehl, an important voice in the Senate, said that she views flood protection, water and natural resources as co-equal with education and transportation. Committee member Sen. Sam Aanestad (R-Grass Valley), however, urged his colleagues not to confuse water resources and flood protection with parks and open space. Lawmakers already have concerns about the size of the governor’s bond package, Aanestad said, and loading money for parks and open space into it will only make the debt bigger. Still, it is unlikely the Democratic majority will back a bond package that lacks money for parks and open space. Flood control, however, has at least started the year as something of a bipartisan issue. Aanestad and Democratic Assemblyman John Laird of Santa Cruz introduced as part of the governor’s package two bills (SB 1166 and AB 1839) that would shift liability and financial responsibility for levees from the state to cities, counties and special districts. The proposal could have the effect of nearly ending new development in areas protected by levees, many of which have been chronically underfunded. Local governments have already voiced opposition to the legislation. During a February hearing, Aanestad conceded his bill “probably wasn’t ready for prime time” and said he would rewrite it. But lawmakers clearly are concerned about unabated growth in flood-prone areas. During the same hearing, Kuehl spoke of “changing land use planning so we can help people by not putting them in harm’s way in the first place.” During a February 23 meeting of the Conference Committee on Infrastructure Bonds, state Treasurer and Democratic gubernatorial candidate Phil Angelides urged members to take a smart-growth approach to infrastructure investments. He said infrastructure spending provides “the most important lever the state has” to influence growth patterns, and he contended that Schwarzenegger’s package ignores the lessons California has learned about growth during the last 50 years. “A good infrastructure plan should increase the choices Californians have,” Angelides told the committee. “We have to allocate more resources to mass transit … and to transit-oriented development.” Conference committee members, perhaps tellingly, did not engage Angelides on the subject. Instead, they focused on fiscal issues. Clearly, the conference committee will be where much of the action is. Murray said Democrats can agree with the governor on many things. But when the committee starts producing recommended legislation “we will not necessarily be putting out the governor’s product. We will be putting out the Legislature’s product,” Murray said. Republicans are hoping that CEQA amendments will be part of that product. San Joaquin Valley Republican Assemblymen Greg Aghazarian and Michael Villines introduced bills (AB 2026 and AB 2029) that would relax environmental review for flood control projects. Initially, however, Democrats gave a cool reception to the measures. Housing advocates, meanwhile, have pushed to place money for housing into the infrastructure discussion. State Senate President Pro Tem Don Perata (D-Oakland) and Assembly Speaker Fabian Nuñez (D-Los Angeles) said in February they would include $1.4 billion and $2 billion for housing in their respective bond packages. Although Schwarzenegger did not include money for housing in his initial proposal, his representatives have signaled that he might support the idea. Other than the infrastructure proposals, state Sen. Christine Kehoe’s proposals to amend redevelopment law are potentially the year’s most important land use bills. Her measures, SB 1206 and SB 53, are the result of hearings conducted last fall, which themselves were the result of fallout over the Supreme Court’s June 2005 decision upholding the use of eminent domain for economic development purposes. “I heard from homeowners who feel they may lose their homes, and I also heard from community groups that support redevelopment projects that clean up neighborhoods in crisis,” said Kehoe, a San Diego Democrat who chairs the Senate Local Government Committee. “This is not a simple issue, but one thing is clear: The state needs to do more to tighten the laws and regulations that protect homeowners.” The bills would: • Tighten the definition of blight and repeal the antiquated subdivision exception for required blight findings. • Require new blight findings before redevelopment agencies issue new bonds or merge project areas. • Provide up to 90 days for opponents to file lawsuits or file referendum petitions. • Increase state oversight, primarily by giving the attorney general greater ability to sue redevelopment agencies. • Prohibit redevelopment agencies from buying land for city halls. • Require greater advance disclosure about how agencies will use eminent domain, and limit the time during which eminent domain may be commenced. Kehoe’s redevelopment changes would be the most significant since a 1993 overhaul. The California Redevelopment Association has expressed concern that some of the changes go too far. Kehoe’s bills, though, are not the only measures, as the Supreme Court’s unpopular decision has forced lawmakers to address redevelopment practices. Proposed Land Use Legislation For 2006 • AB 1387 (Jones). Modifies an existing exemption from environmental review for urban infill housing projects. The bill, which has passed the Assembly, would exempt from CEQA-related traffic impacts projects of up to 100 units with a minimum density of 20 units per acre. The projects also would have to be within half a mile of a transit stop and comply with the local circulation element. • SB 832 (Perata). Expands an exemption for urban infill housing developments to cover projects of up to 10 acres and 300 units, but only in cities with populations of at least 200,000 people. This bill could be amended to become part of a Democratic infrastructure package. • SB 1191 (Hollingsworth). A major overhaul of CEQA. Among other things, the bill would establish a “short form” environmental impact report that a lead agency would be required to prepare if a project met certain criteria. The bill also changes notice requirements, timelines and definitions in CEQA, and limits the issues a lead agency may consider. The bill has been assigned to the Senate Committee on Environmental Quality, which is highly unlikely to approve the proposal. • SB 44 (Kehoe). Requires all jurisdictions to adopt air quality elements that account for development patterns. • SB 409 (Kehoe). Requires cities and counties to correlate the water supply portion of their conservation elements with their land use elements. • AB 802 (Wolk). Requires cities and counties to account for flood safety in general plan updates. The bill passed in the Assembly with a bare majority of 41 votes. • SB 655 (Ortiz). Requires cities and counties to map areas with naturally occurring asbestos, identify the areas in the general plan, and disclose to buyers if asbestos is present. The bill stems from controversy in El Dorado and other Sierra foothill counties, where development has stirred up natural asbestos fibers. • SB 1059 (Escutia). Requires cities and counties to amend their general plans to show the electric transmission corridor designated by the California Energy Commission. • AB 350 (Matthews). Authorizes local governments in Alameda, Contra Costa, Santa Clara, San Joaquin and Stanislaus counties to create infrastructure finance districts in jobs-housing opportunity zones. • SB 223 (Torlakson). Establishes a new program in which the Department of Housing and Community Development would offer forgivable loans to cities and counties for the preparation of specific plans that provide for additional infill housing. • SB 1322 (Cedillo). Requires cities and counties to make emergency shelters and residential service providers by-right uses in certain zones. • AB 1020 (Hancock). Permits councils of government and regional transportation agencies in most urban areas to prepare new transportation models that better account for land uses, transit and the effects of charging tolls. The bill passed the Assembly after the author downgraded the provisions from mandatory to permissive. • AB 1157 (Frommer). Authorizes $500 million in bonds to fund railroad grade separation projects. • AB 1785 (Bermudez). Increases by $55 million annually the money available for railroad grade separation projects. • AB 1783 (Nunez). The speaker’s infrastructure plan. The bill contains few details so far. • AB 1831 (Jones) and SB 1163 (Ackerman). Authorizes $2.2 billion in bonds for courthouses, state parks, mental hospitals and other state facilities. Part of governor’s package. • AB 1833 (Arambula). Authorizes $6.8 billion in bonds for county jails, state prisons and development of state military facilities. Part of governor’s package. • AB 1836 (Daucher) and SB 1164 (Runner). Authorizes $38 billion worth of bonds for schools and universities. Part of governor’s package. • AB 1838 (Oropeza) and SB 1165 (Dutton). Authorizes $26 billion in bonds for transportation improvements. The bills also change contracting procedures to permit “design-build” projects and “design sequencing.” Part of governor’s package. • AB 1839 (Laird) and SB 1166 (Aanestad). Authorizes $9 billion worth of bonds for flood protection and water management projects. The bills would shift responsibility for Central Valley levees from the state to local governments in some instances, and would impose a new charge on water customers statewide to raise $5 billion worth of revenue over 10 years. Part of governor’s package. • AB 2025 (Niello). Authorizes Caltrans to use the design-build method to deliver projects. Part of Assembly Republican package. • AB 2026 (Aghazarian) and AB 2029 (Villines). Reduces CEQA requirements for flood control projects. Part of Assembly Republican package. • AB 2027 (La Malfa). Reduces wildlife habitat protection requirements for flood control projects. Part of Assembly Republican package. • ACA 4 (Plescia), ACA 9 (Bough) and ACA 11 (Oropeza). Different approaches for protecting Proposition 42 sales tax revenue for transportation. • ACA 27 (McCarthy). Provides for pay-as-you-go capital improvements. Part of Assembly Republican package. • SB 153 (Chesbro). Authorizes $4 billion in bonds for parks, open space and water resources. • SB 1024 (Perata). Authorizes an unspecified amount of bonds for a wide variety of capital improvements and environmental programs. The bill could authorize at least $14 billion worth of bonds. • AB 773 (Mullin). Increases from 30 days to 90 days the time in which voters may prepare a referendum of a redevelopment ordinance. Jurisdictions with more than 500,000 people already have the 90-day period. The bill would extend the 90-day provision to smaller jurisdictions. • AB 782 (Mullin). Removes as a basis for establishing a redevelopment project area the existence of small and irregular lots. Agencies instead would have to make typical findings of blight. • AB 1162 (Mullin). Places a moratorium until 2008 on redevelopment agencies taking by eminent domain an owner-occupied residential property if the property is to be transferred to a private entity. • AB 1893 (Salinas). Prohibits a redevelopment agency from using tax-increment financing to fund the acquisition of land on which a city hall or county administrative building would be constructed. The bill also bars use of tax-increment financing for site clearance or design costs for city hall and administration center projects. • AB 1990 (Waters). Prohibits use of eminent domain if the real property being acquired is to be transferred to a private entity. • ACA 22 (La Malfa), SCA 15 and SCA 20 (McClintock). Constitutional amendments that place tight restrictions on the use of eminent domain. • SB 53 (Kehoe). Requires redevelopment plans to explain where, when and how officials will use eminent domain. The bill also makes plan amendments subject to referendum. • SB 1206 (Kehoe). Proposes an overhaul of the Community Redevelopment Law by, among other things, providing a new definition of blight, limiting the use of funds in merged redevelopment project areas, and making it easier to file legal challenges and referendums regarding redevelopment plans. • SB 1210 (Torlakson). Makes numerous changes to how agencies carry out eminent domain actions. • SB 1329 (Alquist). Authorizes redevelopment agencies to award planning grants and other financial incentives to supermarkets and other grocers to assist with planning and building supermarkets in underserved areas. • AB 1766 (Dymally). Permits enterprise zones to request 25-year extensions. Eighteen such zones, in which the government provides tax breaks for new and growing businesses, are scheduled to expire this year. • AB 1898 (Jones). Requires property owners in areas lacking 200-year flood protection to get flood insurance. This would be a new requirement for large portions of the Sacramento and Stockton metropolitan areas. • AB 1899 (Wolk). Prohibits development on land that lacks 200-year flood protection. This bill could start a major controversy over planning to avoid disasters. • SB 42 (Florez). Requires new compacts between the state and Indian tribes to be approved by the Legislature. • SB 625 (Battin). Authorizes the Department of General Services to offer surplus land to local governments at fair market value. • SB 1060 (Campbell). Authorizes two or more local agencies within the same county to swap property tax revenues for sales tax revenues. • SB 1230 (Florez). Creates the Clean Air Enterprise Zone Program, which permits creation of new enterprise zones in the San Joaquin Valley.

For almost 60 years, urban redevelopment and eminent domain have been intertwined, both in public policy and in the public’s mind. Since at least the passage of the Housing Act of 1949 – and in some states even before that – eminent domain has been used to assemble large blocks of urban land out of small, cut-up parcels. Maybe urban development specialists can’t imagine life without it. Now all that is changing. The backlash against last summer’s U.S. Supreme Court decision in – which upheld the use of eminent domain for economic development purposes (see August 2005, July 2005) – has rippled throughout the nation and deeply into California. There are any number of bills in Sacramento that would restrict or place a moratorium on local governments’ use of eminent domain. Two initiatives are in the signature-gathering stage. And state Sen. Tom McClintock (R-Thousand Oaks) is trying to ride the anti-eminent domain wave into the lieutenant governor’s office, just as he used anti-car tax sentiment in his 2003 gubernatorial campaign. Not surprisingly, most of the effort on the public side is focused on trying to turn back this tide or at least contain restrictions on eminent domain. But the truth of the matter is that, in California, eminent domain has been on the wane as an economic development tool for at least a decade, and further restrictions appear inevitable no matter what local government and redevelopment advocates do. So the real question is not, how does expansive use of eminent domain get protected? It won’t. The reason question is, how do you pursue an urban development strategy without eminent domain? There are two answers. One is the “needle in a haystack” idea – use a microscope to find the best hidden opportunities in the private market. The second is the “big kahuna” idea – find the biggest landowner you can, usually a public agency or a large institution, and bring them to the table. Let’s begin with the needle in a haystack. One of the main reasons for the use of eminent domain in urban redevelopment was land ownership patterns. The same conditions exist today that existed 60 years ago. Infill locations are cut up into small parcels. The parcels are expensive. And many landowners are simply uninterested in playing the infill game. Hence the needle in the haystack strategy. This is what most of the major GIS-based infill analysis experts are working on – finding the parcels that are big enough, well situated enough, and that have enough potential under existing zoning to accommodate a lot of new development. Cities want to identify these sites in order to focus their infill development policies in the right locations. Developers want to find the needles in the haystack to get a leg up on the competition. Full disclosure: This is the essence of what the infill analysis method developed by sister company, Solimar Research Group ( Solimar.org .), seeks to do. It is also the idea behind other GIS-based infill policy tools that have emerged, mostly with Caltrans funding. These include the California infill parcel locator ( infill.gisc.berkeley.edu ), developed by John Landis of UC Berkeley, and the L.A. Lots program ( lots.ucla.edu ), developed by Neal Richman and his colleagues at the UCLA Neighborhood Knowledge Research Center. Simply finding the parcels isn’t the end of the story. Whether you’re a city or a developer, if you don’t have eminent domain available, you then have to persuade the current landowners to play ball voluntarily. And this isn’t easy. Like their greenfield counterparts – who were historically farmers – urban landowners are not always economically rational business owners and they are not always in the marketplace at the time cities or developers want them to be. Farmers usually want the right to farm until they decide to retire, at which time they want the right to sell out to a developer at a high price. The same is true for urban landowners. They want the right to sell at a high price, but only on their timetable. And often as not, their timetable is driven by personal concerns such as retirement, estate planning, or the educational needs of children and grandchildren. On top of that, many urban landowners – especially along commercial strips – have owned their property for decades. This means they have no debt and pre-Proposition 13 taxes. Even a half-empty, rundown strip is providing them with a healthy cash-flow, and it can be hard to persuade them that partnering in an infill development project is a better business model than cashing their tenants’ checks. But that doesn’t mean that looking for the needle in a haystack is pointless. It only means you have to be realistic and understand that the landowner’s internal clock is as important as any other factor. For developers, this means understanding the landowner’s personal circumstance and financial needs. For public agencies, it’s a little trickier. The main goal of the needle in the haystack search is to identify the parcels that should be ripe for infill, and then change land use policies (density, parking, processing time, whatever) so that when the right time comes for the landowner, infill is an attractive alternative. Another goal might be to pre-screen parcels so that infill developers don’t have to look so hard to find the needle. The city gives them the microscope. Then there’s the “big kahuna” approach – which is likely to be the basis for most large-scale urban development in the post-eminent domain world. Amid all the needles in haystacks in the urban environment, there are a few landowners in a completely different situation. They own large parcels, and often (though not always) they are focused on public policy goals rather than strictly on the bottom line. This class of landowners includes government agencies of all kinds and semi-public institutions such as universities and hospitals. Sometimes, these institutions and agencies have similar motivations to other urban landowners. They have no debt on their land and therefore little motivation to use it efficiently; they don’t see themselves as being in the development business. Increasingly, however, they see both the financial rewards of infill development and the benefit of improving their neighborhood around them. And in places that are both congested and expensive, they are also often motivated to provide housing for their employees. We have seen this motivation at work for some time in downtown Los Angeles, where the county government owns some of the most desirable real estate in the United States. Attempts to exploit it for profit go back two decades, when the county planned skyscrapers on what is now the site of the Walt Disney Concert Hall. Now there is a renewed effort for something more sophisticated and urbane, given the hot downtown condo market. Sometimes large private landowners simply realize it is time to cash in – as is happening with the owners of California’s pre-eminent horse racing tracks. In these situations, cities can play the redevelopment game by using the leverage they have over the approval process to get an urban place rather than just a development project. Bay Meadows in San Mateo is undertaking a major and commendable “placemaking” effort – and it’s not in a redevelopment area. We will surely see a similar large-scale effort at Hollywood Park in Inglewood and perhaps at Santa Anita in Arcadia as well. Of course, even under the best of circumstances, a lot of needles will stay lodged in the haystack. And some large urban landowners – even institutional and public landowners – will take the easy money of big boxes and self-storage over the harder job of making great urban places. But the larger point is that urban redevelopment will continue to occur in California – with or without eminent domain – because political and economic forces are demanding that it happen.

Twenty miles south of San Francisco , the City of San Mateo has approved a specific plan calling for a major, mixed-use development next to the busiest Caltrain station in San Mateo County. At least 1,000 new housing units and more than 1 million square feet of office and retail space would replace the Bay Meadows horse racing track in a project backed by numerous environmental and housing groups. The local response to the city's approval of Bay Meadows redevelopment was a referendum. When county elections officials in January determined the referendum was 136 valid signatures short of qualifying for the ballot, referendum backers filed a lawsuit challenging the county's determination of valid signatures. The uncertainty stemming from the litigation and potential referendum, coupled with the fact that the developer has no entitlements yet, suggests that a project being promoted as a model of transit-oriented development may be years from breaking ground. "This is a big enough project," said referendum proponent Linda Schinkel, of Friends of Bay Meadows, "that, even if the race track wasn't involved, the citizens of San Mateo should vote on it. We believe the City Council is out of step with the majority of the citizens of San Mateo." Those charges frustrate Vice Mayor Jack Matthews, who has been involved in planning Bay Meadows redevelopment for three years. He said the Bay Meadows plan is too complicated for voters to understand. And, he noted, the three City Council candidates who endorsed Bay Meadows redevelopment won during the last election. "We're trying to increase transit and decrease traffic," summed up Stephen Scott, San Mateo principal planner. Distrust runs deep on all sides, and Scott's assertion is a case in point. How, ask project opponents, can a major development project in the middle of a built-out city decrease traffic? And, they ask, what about assurances — issued when auxiliary race track facilities were developed only a few years ago — that there were no plans to tear down the horse track? City officials ask why the project's opponents declined to take part in the planning process other than as observers and occasional commenters. Meanwhile, scars from the referendum signature-gathering process remain. When referendum proponents set up tables in front of stores, developer Bay Meadows Land Company (BMLC) sent its own representatives to provide counter-arguments and get signatures on petitions backing the project. The police broke up at least one confrontation. For decades, Bay Meadows was a regional landmark. Built during the Depression, the track is adjacent to the county's exposition grounds, and between the Bayshore Freeway and El Camino Real. The track's heyday came during the 1940s and '50s, but it apparently remained a successful operation for decades. More recently, though, horse racing has struggled nationwide, and the roughly 3,000 people who attend a race leave many empty seats in Bay Meadows' huge grandstand. In 1997, San Mateo approved what is now known as "phase one" redevelopment. It involved a specific plan for development of 734 residential units, 300,000 square feet of retail uses, and a 900,000-square-foot campus for investment giant Franklin Resources. The 75-acre site formerly had a practice track and horse barns. By late 2002, all but the final third of the Franklin project was completed. Designed by new urbanist architects at Calthorpe Associates, the project won a number of awards. Back when the city approved the phase one specific plan, PaineWebber Inc. controlled BMLC, which owned the entire 173-acre Bay Meadows site. Bay Meadows Land then sold chunks of the phase one site: Ryland Homes and apartment developer JPI built the housing, and Franklin built its own campus. A few years later, BMLC itself developed a 7.3-acre mixed-use project that serves as the centerpiece of phase one. Since then, BMLC has separated from its corporate owners and it is now a real estate investment trust backed by public pension funds and institutions. During the 1990s, the city started receiving projections of major population growth from the Association of Bay Area Governments, Scott recalled. So the city began looking for underutilized areas. Eventually, the city undertook a study of the Caltrain corridor and in June 2005 the city adopted a corridor plan for about 600 acres, including Bay Meadows, as an amendment to the general plan. At the same time it prepared the corridor plan, the city processed the Bay Meadows specific plan amendments for the race track site. In November 2005, the City Council unanimously approved the revised specific plan. The exact mix of uses is up to the developer, but the base program calls for 1,250 residential units, 1.25 million square feet of commercial uses, and 150,000 square feet of retail space. The plan designates 15 acres of parks and a town square, and envisions a mixed-use main street. Nearly all of the new development would be within four blocks of the train station, which is a stop for the "Baby Bullet" linking San Francisco with San Jose. The Hillsdale shopping mall is only two blocks west of the train stop. The plan also contemplates dramatic changes to the city's circulation. The railroad tracks, the race track, the practice track and the expo grounds made getting from point to point in that part of San Mateo a challenge. The specific plan calls for three new railroad grade separations, providing improved east-west circulation. Additionally, Delaware Street, a thoroughfare that now ends at the horse track parking lot, would be pushed through to improve north-south circulation. "The city will be knitted together a whole lot better than it has been in the past," Matthews said. City officials see other benefits, as well. Bay Meadows is not within a redevelopment project area – the area does not qualify, according to Scott — so all infrastructure improvements are the developer's responsibility. The development agreement between the city and BMLC requires advance payment of traffic mitigation fees to help fund two of the railroad undercrossings. And the city will get more than 15 acres of parks, plazas and easements, Scott said. In addition, the city's inclusionary housing ordinance, which does not allow in-lieu payments, requires that 10% of new units be provided for moderate-income residents, and the development agreement requires the donation of one acre for affordable housing development, which could provide at least 50 more affordable units, Scott explained. The Sierra Club, Greenbelt Alliance, Silicon Valley Leadership Group, San Mateo Housing Leadership Council and the League of Women Voters are among groups endorsing the project. "It's an excellent example of smart infill," said Michele Beasley, South Bay field representative for Greenbelt Alliance. The site is underutilized, on a commuter rail line, and provides a good alternative to development on the Bay Area's fringe, she said. Project opponents are not convinced. Pointing to promises made as recently as five years ago that the race track was safe, Save Bay Meadows Citizens Group co-founder Donna Bischoff contended that the city and landowner have been lying to citizens for years. That is why she and other opponents did not participate in a Citizens Advisory Commission (CAC) that helped write the corridor plan and endorsed Bay Meadows redevelopment. "Opposing views were really shut out of the process. The decision to develop Bay Meadows was made a long time ago," Bischoff charged. Schinkel, of Friends of Bay Meadows, agreed, calling the CAC "handpicked" and not representative. Opponents are unconvinced the project will improve congestion. They contend the new connections will only put more cars on existing thoroughfares. Schinkel said that although the train would serve the project, the train is the only good public transit choice, meaning that new residents and office workers mostly will drive. She also questioned why the city needs another dose of office space when vacancy rates have been at about 20% since the dot-com bust. "The track is irreplaceable. It's been part of San Mateo history for 71 years. It still makes a lot of money," Schinkel said "It's part of the social fabric here." She and other project opponents note that the industry is healthy enough that a Canadian developer has proposed building a new horse racing track in Dixon, about 25 miles southwest of Sacramento. Phase one development has also become an issue, partly because phase two is expected to be somewhat similar. "A lot of people believe phase one was poorly done," said Schinkel, who said many residential units are quite small. "More quality could have gone into phase one. What you see are a lot of stucco buildings." That argument strikes a chord with Matthews, an architect who was on the Planning Commission when phase one was approved. Some of the townhouses are quite narrow and maybe not functional, he said, and some of the architecture is not to his liking. He called the Franklin complex cold and forbidding. Still, phase one has been successful, and Matthews said that "a lot of the elements are there." Phase one has a broad mix of housing units — single-family houses, condominiums, townhouses, apartments, live-work flats — all within walking distance of a grocery store, a gym, a childcare center, coffee houses and restaurants. No unit is more than two blocks from a park. Whether the developer will seek to replicate phase one is unknown. Currently, design guidelines are being drafted, and the developer has submitted no application for entitlements, Scott said. "Phase two is really more challenging in many respects," said Matthews "because it's bigger and much more closely integrated with the rest of the city. We've got to make sure it's a transit-oriented development and not a transit-adjacent development." Litigation over the referendum is expected to proceed quickly. Interestingly, project opponents did not challenge the environmental impact report for the specific plan. Contacts: Stephen Scott, City of San Mateo, (650) 522-7207. Jack Matthews, San Mateo vice mayor, (650) 522-7049. Michele Beasley, Greenbelt Alliance, (408) 983-0856. Linda Schinkel, Friends of Bay Meadows, (650) 344-5424. Save Bay Meadows Citizens Group: www.savebaymeadows.org . Bay Meadows Land Company: www.bmlc.com .

Redevelopment plans in downtown San Bernardino appear to be advancing after many years of fits and starts. In January, proponents of a plan to replace an older neighborhood with a 44-acre lake won two lawsuits over the project. In February, LNR Properties, a subsidiary of homebuilding giant Lennar Corp., acquired a long-struggling mall. The developer plans to build at least 900 housing units on the site. Meanwhile, the city’s redevelopment agency is actively acquiring and assembling land for a 200-unit, live-work loft project. The lake project may be the most ambitious of the downtown efforts, and it is by far the most controversial. Eight years ago, the city, the San Bernardino Valley Municipal Water District and the Inland Valley Development Agency formed a joint powers authority (JPA) to carry out the project. The proposal has evolved over the years from a giant reservoir, to a series of small lakes and canals, to the project that was approved last year. The approved north lake area project calls for scraping clean an 82-acre, 16-block area on the north end of downtown, just east of the 215 freeway. A 44-acre lake, parks, 72 houses and 12 acres of commercial development would replace the existing neighborhood. The 53-acre south lake area project lies about 11 blocks south. It involves a 5-acre lake/wetlands area, and development of about 500,000 square feet of offices, retail stores and restaurants. The area is now the site of aging industrial buildings and houses, and the city’s redevelopment agency already has considerable holdings there. For the north lake project, the water district is responsible for acquiring property and relocating residents and businesses. The project would displace about 1,300 people living in 475 housing units, and about 50 businesses. The area is impoverished, blighted and crime-ridden, according to project backers, who cite a variety of census and police statistics to support their claims. The lake project is a needed step toward renewal of the downtrodden area, said Patrick Milligan, president of the water district’s board. Others are skeptical. James Mulvihill, a geography and planning professor at California State University, San Bernardino, said that the project follows the disproven “urban renewal” model, in which poor, aged and disabled people are displaced for to make room for more desirable people. “It would be an absolute embarrassment if San Bernardino actually carried through on this,” Mulvihill said. “We’ll be the poster child for 1950s-style redevelopment in the 21sth Century.” Area residents filed two lawsuits. One charged that the city failed to identify adequate replacement housing and that the project relied on outdated real estate information. The other lawsuit challenged the project’s environmental impact report, including its handling of historic structures. In January, San Bernardino County Superior Court Judge John Wade issued a tentative ruling against project opponents in both lawsuits. The opponents’ attorney, Louis Goebel, said he was awaiting a final judgment, but said that appeals were likely. “Our people would like to not have it happen at all,” Goebel said of the north lake project. “They are very happy there. They love their homes.” Other avenues are available for fighting the project, Goebel added. For one, the JPA has yet to complete an environmental impact statement (EIS) required by the National Environmental Policy Act. Documents suggest that two of the reasons for building the lake — cleaning up tainted groundwater and resolving problems with high groundwater — are bogus, according to Goebel. Water district and city officials dispute those contentions. The project’s heavy reliance on eminent domain also presents a potential problem because state lawmakers are considering changes to how and when public agencies may use eminent domain. Not all locals oppose the project, though. Walter Jarman, president of the NAACP’s San Bernardino chapter, said the organization is concerned about the impact on long-time residents. But, Jarman recalled, years ago Old Pasadena was a derelict district that people avoided. Now it is a national model of urban development. “I know something needs to happen here in San Bernardino regarding the living conditions and the whole gamut of problems that are in existence,” Jarman said. “But somebody always loses.” John Hoeger, the JPA’s project manager, said a relocation plan for the north lake project is nearly complete. The federal EIS is scheduled to be complete in January 2007. It is required because the water district intends to use federal funds to acquire property, Hoeger explained. The water district has secured about $20 million in federal funds for the project and hopes to get more. The entire project is expected to cost at least $150 million. Once the lake and other public improvements are complete, it will be up to the Economic Development Agency (the city’s redevelopment arm) to encourage adjacent housing and commercial development. The south lake project is not as far along. The city and its redevelopment agency, not the water district, will be in charge. Between the two proposed lakes lies the Carousel Mall, which has been dying a slow death since the mid 1990s and is now mostly an office building. Numerous entities have taken a run at refurbishing or replacing the mall, but nothing has happened. The mall’s acquisition by LNR has given the city hope, said Colin Strange, a project manager for the Economic Development Agency. “We’re very happy, and we’re very comfortable,” said Strange, who noted that LNR has asked for no public agency participation in the project so far. “They have long-range plans for either converting the mall or tearing it down, and creating, for want of a better word, an ‘urban village’ there.” Preliminary plans call for 900 to 1,100 housing units, along with retail and office development, according to Strange, who said the project would complement the new lakes. The mall and north lake project should spur new investment in the 20 blocks between the two projects, Strange said. Already, the city’s redevelopment agency is working with Watson & Associates on a 200-unit, live-work project in the area. The project site is next to a fairly new, city-built senior citizens center on 5th Street. Contacts: John Hoeger, lakes project joint powers authority, (909) 384-5133. Colin Strange, San Bernardino Economic Development Agency, (909) 663-1044. James Mulvihill, CSU San Bernardino, (909) 537-5522. Walter Jarman, NAACP San Bernardino Chapter, (909) 887-7411. Louis Goebel, lake project opponents attorney, (619) 239-2611.

A turf battle between two local agency formation commissions has concluded with an appellate court ruling that a commission from one county has jurisdiction to determine a sanitary district’s service area in another county. The issue decided by the Third District Court of Appeal is this: When a special district provides service in two counties, which county local agency formation commission (LAFCO) has jurisdiction over planning matters concerning the district’s work within an individual county? The court ruled that the LAFCO from the “principal county” — defined as the county with the most assessed value of the district’s taxable property — has jurisdiction, even if the planning matters in question occur in another county. The ruling came in a lawsuit filed by Placer County LAFCO against Nevada County LAFCO regarding the Truckee Sanitary District (TSD), which provides wastewater collection in the High Sierra. The TSD is one of nine special districts that provide service to portions of both counties. Nevada County LAFCO is the principal county for six of those districts, include TSD. Truckee Sanitary District proposed a sphere of influence expansion in Placer County that would overlay a substantial portion of the Northstar Community Service District’s existing sphere of influence. The Northstar district provides a variety of services, including wastewater collection. In 2002, Placer County LAFCO asked the court to determine which LAFCO had jurisdiction over the proposed sphere of influence proposal and which agency had authority to prepare a municipal service review for sewer services within Placer County. Sierra County Superior Court Judge William Pangman, sitting by assignment to the Placer County Superior Court, ruled that Nevada County LAFCO — the principal county — should determine the sphere of influence and perform the municipal service review. However, Judge Pangman also concluded that Placer County LAFCO could conduct its own service review, even if it could not determine the sphere of influence. Placer County LAFCO appealed, and a unanimous three-judge panel of the Third District upheld the lower court. There is no dispute that Nevada County is the principal county. Rather, the case turned on the interpretation of the Cortese-Knox-Hertzberg Local Government Reorganization Act (Government Code § 56000 et seq.), which governs local agency formation commissions. The law defines changes of organization as “a city incorporation/disincorporation; a district formation/dissolution; an annexation to, or detachment from, a city or district; a consolidation of cities or special districts; a merger or establishment of a subsidiary district.” The law defines sphere of influence as “a plan for the probable physical boundaries and service area of a local agency.” Local agency formation commissions conduct municipal service reviews to prepare and update spheres of influence. Placer County argued that under the statute, the principal county has jurisdiction over only “changes of organization” affecting other counties, and not over spheres of influence or service reviews in other counties. Because TSD was not proposing a change of organization or reorganization, Placer County LAFCO contended that it had jurisdiction over the sphere of influence request and service review. The court disagreed. “ hange of organization is what the Act is all about. It is why all LAFCOs exist, whether or not they are the LAFCOs of principal counties,” Justice Richard Sims III wrote for the Third District. “Once the principal county comes into being, we see no impediment to the Legislature giving the principal county jurisdiction over additional matters beyond changes of organization — matters such as spheres of influence and service reviews.” Placer County LAFCO made numerous arguments centered on local control and the intent of Cortese-Knox-Hertzberg, which is to discourage urban sprawl and provide for efficient provision of services. “However,” the court responded, “having a neighboring county (as opposed to the state) determine a sphere of influence for a multi-county district does keep the matter local, and having one county determine the sphere of influence for a multi-county district (as opposed to multiple counties within the district each determining their own sphere of influence for the district) is consistent with the objectives of planned growth and discouragement of urban sprawl.” Placer County LAFCO cited the Governor’s Office of Planning and Research’s “Local Agency Formation Commission Municipal Service Review Guidelines and Appendices,” and the 2000 report from the Commission on Local Government for the 21st Century, “Growth Within Bounds: Planning California Governance For The 21st Century.” The latter report was the basis for the overhaul of the then-Cortese-Knox Act. Placer County LAFCO argued that the OPR guidelines do not give exclusive jurisdiction to a principal county, and that “Growth Within Bounds” talked about limiting principal county jurisdiction to changes of organization. The court, though, was unconvinced. The court also rejected the contention that the trial court’s ruling was inconsistent because Judge Pangman ruled that although Nevada County LAFCO had “exclusive jurisdiction” over the service review, Placer County could conduct its own review. “We see nothing wrong with Placer County studying or reviewing services within its border,” the Third District ruled. “Its reviews simply do no constitute the ‘service reviews’ that will be used to establish and update spheres of influence under the Act for multi-county districts for which Placer County is not the principal county.” The Case: , No. 06 C.D.O.S. 410. Filed January 13, 2006. The Lawyers: For Placer County LAFCO: William M. Wright, (916) 783-2946. For Nevada County LAFCO: P. Scott Browne, (530) 272-4250. For Northstar Community Services District: Neil Eskind, (530) 583-5536. For Truckee Sanitary District: Ruthann Ziegler, Meyers, Nave, Riback, Silver & Wilson (916) 556-1531.

Cities may not use aesthetic considerations to regulate the placement of telecommunications antennas, the Ninth U.S. Circuit Court of Appeals has ruled. Under the California Public Utilities Code, “the regulatory power is functional, and does not extend to aesthetics,” the court ruled while invalidating the City of La Cañada Flintridge’s ordinance regarding telecommunications facilities. The ruling appears to be a major victory for telecommunications companies, with which California cities have an ongoing battle over the siting of antennas and other facilities for wireless communication. In 2001, La Cañada Flintridge adopted an ordinance regulating “above-ground structures along city public rights-of-way.” The ordinance spelled out criteria city officials were to use when considering permits for such structures. A number of criteria concerned the appearance of the proposed structures. In the months following the city’s adoption of the ordinance, Sprint PCS applied for five permits for antennas to remedy service dead spots in town. The city approved two applications, and Sprint dropped one. The city denied two other applications. The city denied an application for an antenna on Figueroa Street because it would “significantly damage the existing character of the neighborhood and result in a negative aesthetic impact on the right-of-way,” change the character of the neighborhood, impact residents’ views of the neighborhood and be “unsightly.” The city rejected an antenna proposed for Descanso Drive because the antenna would result in an over-concentration of such structures, would be “out of character for the neighborhood,” and would “draw attention in a negative aesthetic manner along the street.” Sprint sued over the two rejections. District Court Judge David Carter upheld the city’s decisions. A unanimous three-judge panel of Ninth Circuit not only overturned the lower court, but also threw out the city’s ordinance. According to the appellate panel, California Public Utilities Code § 7901 governs the city’s ability to regulate in this area. “Section 7901 gives telephone companies broad authority to construct telephone lines and other fixtures,” Judge Diarmuid O’Scannlain wrote for the court. “By the plain text of the statute, the only substantive restriction on telephone companies is that they may not ‘incommode the public use’ of roads.” “The text,” O’Scannlain noted, “focuses on the of the road — its use, not its enjoyment.” However, § 7901.1 provides two modifications to the general rule of § 7901. The former permits regulations based on “time, place and manner,” and on how facilities are accessed. A proposed antenna’s appearance could conceivably be regulated under the “manner” provision. But, the court ruled, that would be an “illogical” reading of the statute. “Section 7901.1 only gives cities the authority to regulate the manner in which roads ‘are accessed,’ not the authority to regulate the manner in which telephone companies affect the road’s appearance,” O’Scannlain wrote. Under the law, cities cannot consider evidence regarding aesthetics when reviewing a permit application, the court ruled. The city argued that the federal Telecommunications Act of 1996 reserves the city’s police powers and even mandates city autonomy. The court rejected this argument. O’Scannlain explained it thusly: “If the local ordinance is valid under the Telecom Act, despite being invalid under state law, then the Telecom Act effectively provides a measure of sovereign authority to cities, which their own state constitutions and statutes deny them. The language of subsection (c)(7)(A), however, does not imply that local law should be valid to the exclusion of state law, but merely that local law itself may not be ignored. Thus, if the local law itself is invalid — for example, because it conflicts with state law — then subsection (c)(7)(A) will not save it.” “ here is no local authority here in the first place — state law has already preempted local authority,” the court concluded. The authority sought by La Cañada Flintridge “would be antithetical to the purpose of the Telecom Act,” whose goal is to promote higher quality telecommunications services and rapid deployment of new technologies. The Case: , No. 05-55014, 06 C.D.O.S. 451. Filed January 17, 2006. The Lawyers; For Sprint: John J. Flynn III, Nossaman, Guthner, Knox & Elliott, (949) 833-7800. For La Cañada Flintridge: Scott Grossberg, Cihigoyenetche, Grossberg, & Clouse, (909) 483-1850.

The question of whether a transportation agency must perform an environmental review before placing a sales tax measure on the ballot remains unresolved. In a case from San Bernardino County that could have answered the question, the Fourth District Court of Appeal instead ruled on a procedural matter. The Sierra Club argued that San Bernardino County should have prepared an environmental impact report before a half-cent sales tax measure for transportation appeared on the November 2004 ballot. However, the Fourth District ruled that the Sierra Club should have challenged the San Bernardino Associated Government’s decision to exempt the sales tax measure and expenditure plan from environmental review. The Sierra Club did not choose this line of attack. Instead, the group challenged the Board of Supervisors’ conclusion to exempt from review the decision to place the measure on the ballot. That was not the proper legal route for the Sierra Club, the court ruled, because the Board of Supervisors’ decision to place the measure on the ballot was ministerial and, therefore, exempt from the California Environmental Quality Act (CEQA). “That troubles me,” Sierra Club attorney Barrington Daltrey said of the ruling, “because we’re saying that the public agency that is paid to carry out the law can play ‘gotcha.’” The California State Association of Counties, however, was pleased with the ruling. The association had submitted an amicus brief contending that a Board of Supervisors has no discretion over ballot measures sent from other governmental entities for placement on a county ballot. The Fourth District agreed the board’s duty in such instances is ministerial and not subject to CEQA — a decision that is helpful to counties, said Jennifer Henning, CSAC litigation coordinator. Different agencies provide different answers to the question of whether to study the potential impacts created by a proposed sales tax measure and its related spending plan. Most transportation agencies have not performed environmental review prior to the placement of a sales tax measure on the ballot. But in recent years, transportation agencies in Contra Costa County and San Francisco have completed environmental evaluations prior to putting sales tax extensions on the ballot. The Orange County Transportation Agency has indicated it will do the same before seeking an extension. San Bernardino Associated Governments (SANBAG) was in the majority of agencies that declined to complete an environmental review. In June 2004, SANBAG authorized a 30-year extension of an existing half-cent sales tax override, adopted a transportation expenditure plan and requested the San Bernardino County Board of Supervisors place the extension before voters. On June 15, 2004, SANBAG posted a notice of exemption stating that its decision was not a project under the California Environmental Quality Act (CEQA). Two weeks later, the Board of Supervisors approved placing the measure on the ballot and posted its own notice of exemption. On August 3, 2004, the Sierra Club filed a lawsuit contending that SANBAG and the county were required to prepare an EIR before placing the measure on the ballot. The election went ahead, and 80% of voters approved the sales tax extension (see , December 2004, October 2004). The measure is expected to raise $6 billion over 30 years starting in 2010. The county and SANBAG asked San Bernardino County Superior Court Judge Shahla Sabet to dismiss the Sierra Club’s lawsuit. When she declined to do so, SANBAG appealed. On appeal, the Sierra Club presented two primary arguments: First, the county, as a member of SANBAG, helped shaped the measure, so it had a duty to study the environmental consequences. Second, the group argued, placing the measure on the ballot was a discretionary action requiring environmental review. In overturning the lower court, the Fourth District rejected both lines of reasoning. The court noted that the Local Transportation Authority and Improvement Act (Public Utility Code § 180200 et seq.) gives the sales tax override jurisdiction to the county transportation authority, not to the county itself. “The purposefully broad-based process for approving the expenditure plan and the two-thirds requirement for the authority to adopt the sales tax ordinance indicate the Legislature’s intent to prevent the county from exercising its concentrated power over the dispersed and, presumably, less powerful individual cities. This purpose would be poorly served if we were to read into the act a discretionary power or duty on the part of the Board to reject or change the sales tax ordinance and expenditure plan it has been formulated, reviewed and approved by the authority and its members,” Justice Jeffrey King wrote for the unanimous three-judge appellate panel. The court then turned to the issue of whether the Board of Supervisors’ decision to place the measure on the ballot was discretionary. The Sierra Club argued that, under , (2001) 25 Cal.4th 165 (see , May 2001), any public agency must comply with CEQA before placing a measure on the ballot. “A close reading of does not support the Sierra Club’s position,” Justice King opined. “The precise holding of the Supreme Court in is as follows: ‘CEQA compliance is required when a project is by a public agency.’” In this case, King wrote, SANDBAG — not the county — generated the ballot measure. The county “was merely the agent of SANBAG.” “If the expenditure plan or the measure required compliance with CEQA (a question we do not decide), it was SANBAG, as the body substantively responsible for the measure, that would have been required to conduct an environmental review,” the court held. “The governmental officials who shape the contents of the expenditure plan, and who must be knowledgeable about the environmental consequences of their decisions, are the members of SANBAG.” The Sierra Club pointed to Local Transportation Authority and Improvement Act language that says a transportation agency shall “request” a Board of Supervisors place a measure on the ballot. The term “request” implies that the board has discretion, the environmentalists argued. The Fourth District, though, found that a request “is merely the event that triggers the calling of the special election; as such it implies no discretion or decision-making power in anyone.” Finally, after determining the county did not have to perform an environmental review, the court ruled that the lawsuit was filed after the statute of limitations had expired on SANBAG’s notice of exemption. Daltrey, the Sierra Club’s attorney, said that a master EIR on the transportation expenditure plan would have provided the best study of cumulative impacts, and would have provided useful information for voters. Now, SANBAG will have to address cumulative impacts while reviewing every individual project, he said. SANBAG officials have contended throughout the controversy that it would be pointless to study the potential impacts of projects that will not be carried out for years or even decades because an EIR would be obsolete by the time a project commences. The Case: , No. E037468, 06 C.D.O.S. 675, 2006 DJDAR 893. Filed January 23, 2006. The Lawyers: For SANBAG: Michelle Ouellette, Best, Best & Krieger, (951) 686-1450. For Sierra Club: Barrington Daltrey, (951) 780-5131.