It’s election season, and throughout California we are seeing an unusually large number of ballot measures designed to restrain development. As usual, most of these measures are in coastal areas. Some are urban growth boundary measures, but a lot of them try to put a brake on the density and/or height of new residential development. Presumably that’s because longtime residents in these coastal areas fear that high-density residential development will invade their communities. But even as these skirmishes are still going on, it looks like the battle is over – at least in coastal California. Higher-density development has already won. And increasingly that’s creating a bifurcated state. New single-family homes are built pretty much only in the inland areas. With a couple of exceptions, the coastal areas are turning dense. Perhaps most strikingly, the move toward multifamily development has gotten much stronger since the Great Recession ended. According to the Demographics Research Unit at the Department of Finance, between 2010 and 2016 more than half of all housing units built in California were multi-family units, and the vast majority of those were contained in projects of five or more units. This reverses the trend from the 2000s – but reinforces a trend from the 1990s. (All numbers in this article are derived from DOF's most recent E-5 spreadsheet .) Now, there are a lot of caveats here. There hasn’t been that much housing built since 2010 – only about 300,000 units, or an increase of about 2.5%. (There was only about one housing unit built for every six people addd to the population.) There was a huge amount of single-family housing built during the real estate boom that ended with the crash in 2008 – much of which was available for rent or at cut-rate prices when the Great Recession ended. And lenders have been gun-shy about single-family subdivisions for years. But the trend is striking. And it’s even more striking when you break out the coastal and inland areas – or, more accurately, the land-poor urban areas (which are mostly near the coast and good transit) and the land-rich suburban areas (which are mostly, but not exclusively, inland and away from good transit). To see what I mean, take a look at the striking patterns contained in the chart below. In coastal Southern California – Ventura, Los Angeles, and Orange counties – 77% of new construction is multifamily and only 18% is single-family. (Even in Ventura – land-rich but highly regulated – the numbers were 62% multifamily and 27% single-family.) In the Bay Area, there’s a similar big divide. If you look at the rapidly urbanizing counties with good transit – San Francisco, San Mateo, Santa Clara, and Alameda – you’ll see that 83% of new housing since 2010 is multifamily and only 12% is single-family. In the other counties – Contra Costa and Solano to the east and the three notoriously no-growth counties to the north, Marin, Sonoma, and Napa – you’ll see that only 28% of new housing is multifamily and 68% is single-family. We see the same thing in San Diego – though, as in the Bay Area, some of the single-family dominance is located in slow-growth coastal areas with land. In South County, 66% of new housing is multifamily and only 25% is single-family. In North County, 54% is single-family and 37% is multifamily. But that’s not the whole story. There’s also a story here about big cities in California. Contrary to recent history, they are growing faster than the state as a whole. They are adding housing faster than the state as a whole. And they are adding multifamily housing much faster than the state as a whole. The trend is really striking with the biggest cities. Take a look at the chart below, which compares the four largest cities with the state as a whole. Bear in mind that three of the four cities – Los Angeles, San Jose, and San Diego – are geographically very large, while San Francisco is not. Those big three cities are, however, running out of land. The raw numbers are striking. Of all the new housing built in these four cities, 92% was multifamily and only 7% was single family. But the numbers relative to the state as a whole is even more striking. Look at the chart below. Blue represents the situation in 2010; orange is the change from 2010 to 2016. In 2010, these four cities had about 19% of the population and 19% of the housing. But between 2010 and 2016, these four cities added 24% of the population and 27% of the housing. Most strikingly, they added about 52% of the multifamily housing. In other words, more multifamily housing was built in L.A. San Jose, San Diego, and San Francisco than in the entire rest of California put together . This trend plays out with other big cities, at least in coastal areas. Big inland cities are like their surrounding counties. Housing construction in Fresno, Bakersfield, Sacramento, Stockton, and Riverside – the five biggest inland cities – is all overwhelmingly single-family. So there it is: Bifurcated California. One very identifiable part of California is getting much denser really fast. One very identifiable part of California is not. It doesn’t break out. This doesn’t break down perfectly by coastal and inland areas – political culture about land use in places like the North Bay and North County San Diego matter a lot – but the overall trend is clear. In the long term, the question is not so much how the bifurcation occurs but what it means – not just politically but also in terms of policy, transportation, and lifestyle. For example, as the state’s push for a planning policy revolving around reduction in driving grows, the dense coastal areas will have a huge advantage in competing for money. And the big question is probably whether anti-density politics in the coastal areas will trump pro-density market trends. If the market wins, that means more housing built near job centers, lessening the transportation impact. If anti-density politics wins, that means more housing gets pushed inland. More people will be living in single-family homes, but they’ll be driving a long way to work. Whether they will be happy or not remains to be seen.

At first blush, the rest of California may not have much to learn from a high-priced, semi-isolated Spanish Revival paradise by the sea. But, roughly halfway through this week’s conference  of the American Planning Association California Chapter, held in Pasadena, Santa Barbara yielded what might be the conference's two most compelling pieces of data:  Among all the people who live in Santa Barbara’s downtown core and immediate surrounding neighborhoods, 10 percent commute outside the city for work.  Among all the people who work in downtown Santa Barbara, 39 percent commute into the city from somewhere else.  Hm.  These numbers come from Rob Dayton, principal transportation planner in the Santa Barbara Department of Public Works. They illustrate a truism that planners in big cities know well but that is counterintuitive to many suburban planers and — more importantly — to many of the opponents of growth in center cities. Dayton's numbers attest to the jobs-housing imbalance, in all its Mediterranean glory. (CP&DR doesn’t cover Santa Barbara very often — in part because, being built-out, it doesn’t have a lot of development.)  This data lead to an obvious conclusion: the more residents a downtown accommodates, the less driving there is in the aggregate. That’s doubly true if you believe in a world in which people do not equate self-worth with a steering wheel.  Santa Barbara is acting on this data sensibly: by encouraging development — commercial and residential — in its downtown core. Though Santa Barbara's street grid that is saturated, as Dayton said, a development’s traffic impact depends largely on its location. He expects that developments in the core will generate half the traffic of developments in outlying areas of the city.  This is exactly the kind of logic that eludes many of the opponents of development. In Santa Monica, for instance, voters will soon consider a ballot measure, Measure LV, that would all but freeze residential development. Proponents argue in part that development automatically incurs traffic and they fight like mad against it, ignoring the fact that the people with the most incentive to occupy new units are exactly those who are commuting into Santa Monica. Meanwhile, the westbound Interstate 10 looks like an evacuation route every morning.  Disregard for the jobs-housing imbalance is much the same in Los Angeles, where traffic gridlock is cited as the reason to oppose pretty much everything, especially in sites in West L.A. that would likely house — you guessed it — workers who commute to Santa Monica.  Dayton’s Santa Barbara data is of course no revelation for anyone who has paid any attention to center cities in the past decade. But his way of getting around the NIMBY freakout is. He’s using vehicle miles traveled (VMT) measurements rather than level of service (LOS). That change, which will be blessed statewide with the imminent implementation of SB 743, enables the city to essentially evaluate traffic impacts — and, crucially, CEQA analysis — from potential development in its entire downtown area in one fell-swoop. (The conference's host city, Pasadena, happens to have been the first city in California to implement VMT metrics; see CP&DR coverage .) Dayton said the impacts of any particular downtown development can be performed "on the back of a napkin." That’s because VMT enables the city to account for the non-impact of all those downtown workers who, with closer-in housing, will no longer be gumming up intersections after they spill off Highway 101.  Dayton stressed that Santa Barbara’s plan is new and not yet implemented. But if a place as near-perfect as Santa Barbara can accept that, sometimes, a little development can be a good thing, maybe there’s hope yet for the rest of coastal California.

In most urban areas, the promise of 25,000 new jobs would cause celebrations. But the laws of economics take strange turns in Silicon Valley. This summer, the Santa Clara City Council approved CityPlace, a $6.5 billion mega-development on the site of a city-owned golf course (which was previously a landfill). It is designed in part to be the downtown that the valley, populated by office parks and bedroom communities, does not have. The project, developed by Related Cos., will encompass a total of 9.7 million square feet, more than half of which will be office space, and 1.1 million square feet of retail. Amid this enormity will be 1,360 residential units. But that’s far too few, according to Santa Clara’s biggest neighbor. While Santa Clara city leaders are hailing the project, their counterparts in San Jose are wondering something else: Where is everyone going to live? And how are they going to get there? Shortly after CityPlace’s approval, and an accompanying general plan amendment, San Jose filed a lawsuit against Santa Clara in Santa Clara County Superior Court; Related Cos. is named as a real party of interest. It is believed to be the first time San Jose has sued a neighboring city over development issues. The suit alleges that the project violates the California Environmental Quality Act on the grounds that the city did not properly consider the traffic, water, and economic impacts of the massive project. In particular, San Jose alleges that Santa Clara has failed to plan for the housing needs of the project’s estimated 25,000 workers. They will, San Jose’s argument goes, be forced to seek housing in San Jose and thereby push housing prices even higher. CityPlace exacerbates what San Jose officials describe as an already challenging situation. According to city officials, 32 percent of Santa Clara workers live in San Jose, with only 8 percent of Santa Clarans working in San Jose. “As a city, San Jose is providing housing not just for workers employed in Santa Clara, but for workers in other cities across the Peninsula and South Bay,” said San Jose spokesperson Elisabeth Handler. It’s a region-wide problem – and it’s an old fight in Silicon Valley, where San Jose – a city of almost 1 million people – has long complained of bearing the housing burden for smaller, richer Silicon Valley cities where the jobs are located. “In the Bay Area there is an extraordinary imbalance between job creation and housing production which puts pressure on housing prices,” said Sarah Karlinsky, a policy analyst for the regional urbanist advocacy group SPUR. She noted that the region added over 450,000 jobs from 2010 to 2014, but scarcely more than 10 percent as many housing units. Santa Clara officials point out that the city’s general plan calls for 10,000 new housing units. Santa Clara’s population is 120,000 while San Jose’s is 998,000. “Create profound environmental impacts which, unnecessarily, have a regional effect…. shifts the environmental burden and expense to support that economic development onto neighboring cities and counties by limiting housing within the development,” wrote San Jose’s attorneys in the complaint. “Respondent's EIR has understated and/or whitewashed the impacts the project creates, leaving its own citizens and neighboring communities to bear the burdens, risks, and costs of these impacts.” The complaint further accuses Santa Clara of disregarding the principles of its own general plan, which call for reducing in vehicle miles traveled, reduction in greenhouse gas emissions, and preservation of neighborhoods. Santa Clara has hired prominent CEQA attorney Tina Thomas to defend it. City officials have fired back at San Jose alleging that it has pursued developments close to its border with Santa Clara without consulting the city and that it has aggressively recruited businesses and new jobs. Santa Clara Mayor Lisa Gilmor did not respond to requests for comment. In essence, both cities’ housing shortages, and the resulting jobs-housing imbalance, has made economic development an unusually controversial issue. San Jose hopes to reach a settlement without bringing the suit to court. “As a city, we believe in working with the other cities in our region to jointly address the economic and quality of life issues that impact all of us, without involving the courts,” said Handler. Contacts & Resources Santa Clara CityPlace Project Page San Jose Complaint (pdf) Elisabeth Handler , Public Information Manager, Office of Economic Development, City of San Jose, elisabeth.handler@sanjoseca.gov Sarah Karlinsky , Senior Policy Advisor, San Francisco Planning & Urban Research, skarlinsky@spur.org

The Coastal Act trumps both the Density Bonus Act and the Mello Act, which requires affordable housing in coastal areas. That’s the conclusion of the Second District Court of Appeal, which upheld the City of Los Angeles’s decision to deny a 15-unit housing project in Venice that would have replaced a three-unit building. The ruling reaffirms the power of the Coastal Act, whose primary purpose is to protect coastal resources. In this case, Los Angeles officials decided that the visual incompatibility of the new project, proposed by Kalnel Gardens LLC, with existing buildings violated the Coastal Act even though some buildings nearby were of similar scale. The court had an easy time with the Density Bonus Act, since that law expressly states that it does not supercede the Coastal Act. The court had a more difficult time with the Mello Act, which specifically applies within the coastal zone. In addition, the Coastal Act states that its provisions should not be used to allow local governments to obstruct the construction of affordable housing under other laws. However, the appellate court found, the Coastal Act also requires that the design of new developments protect scenic views and be “visually compatible with the character of the surrounding areas.” (Pub. Resources Code, § 30251.) That was the basis of the City’s decision to reject the Kalnel project, and on appeal Kalnel does not contend there was insufficient evidence to support that finding.” Kalnel proposed a project that included five single-family homes and five duplexes and received a density bonus because two units were reserved for very-low-income families. Under the density bonus law, Kalnel also got a height variance. City staff gave the project various approvals, including a coastal development permit, but neighbors appealed the project to the Planning Commission, claiming that height, density, setbacks, and other visual characteristics were out of step with the neighborhood. At a hearing before the West Los Angeles Area Planning Commission, neighbors claimed one- and two-story structures outnumbered larger structures such as the one proposed by a 9:1 ratio. However, Kalnel’s lawyer ultimately said the project was “all a case about affordable housing and density bonus.” Kalnel lost all the appeals, including the appeal to the Los Angeles City Council, and then filed a lawsuit. Los Angeles County Superior Court Judge James C. Chalfant ruled that the city had violated the Housing Affordability Act and that the project conformed to density bonus rules. However, the court ruled that the three housing laws are subordinate to the coastal act and substantial evidence existed that coastal resources would be threatened by the project. Perhaps the most important issue was whether the Coastal Act trumps the density bonus law – a law that developers often use to increase the density of their project above local zoning limits in exchange for providing affordable housing. But this proved to be an easy issue for the court to resolve. Writing for the three-judge panel, Justice Laurence Rubin simply noted that the The Density Bonus Act (§ 65915) states: “Nothing in this section shall be construed to supersede or in any way alter or lessen the effect or application of the .” (§ 65915, subd. (m).)” The Mello Act proved more complicated, since the law is specifically designed to ensure that affordable housing is provided in the coastal zone. Whenever a new project is built in the coastal zone, the law requires the developer to provide either new or replacement affordable housing. The Coastal Act also specifies coastal considerations do not permit local governments to avoid other affordable housing requirements. “Standing alone, these two provisions might be construed as giving the Mello Act primacy over the Coastal Act,” wrote Justice Rubin. “However, the Coastal Act also requires that the design of new developments protect scenic views and be ‘visually compatible with the character of the surrounding areas.’ (Pub. Resources Code, § 30251.)” In further discussion about the conflict between coastal resources and affordable housing, Justice Rubin wrote: ‘Which interpretation is most protective of coastal resources? One that requires Mello Act housing even if it blocks coastal access, intrudes into environmentally sensitive areas, or is visually incompatible with existing uses, or one that requires application of the Mello Act’s affordable housing requirements within the coastal zone so long as those housing projects abide by the Coastal Act’s overall protective provisions? He concluded: “Remembering the Legislature’s statements that protecting coastal resources is a paramount concern because those resources are of vital and enduring interest, it seems clear that the latter interpretation must prevail.” The appellate court declined to consider the question of the Housing Affordability Act because of a technical error in the appeal made by Kalnel. The Case: Kalnel Gardens LLC v. City of Los Angeles , No. B264434 (September 29, 2016). The Lawyers: For Kalnel Gardens: Allen Abschez, Loeb & Loeb, aabshez@loeb . com For City of Los Angeles: Michael Bostrom, Deputy City Attorney, mailto:Michael.Bostrom@lacity.org

Everyone’s favorite factoid about the Golden Gate Bridge concerns its paint job. Crews are endlessly refreshing its orange coat, working from one end to the other throughout the year and then starting all over again. Such are the ravages of salt and fog. It’s a mundane story about the need for constant maintenance of an iconic piece of infrastructure. Another crucial — if less beloved — piece of California’s transportation infrastructure operates much the same way, albeit in a longer time frame. I have flown into and out of Los Angeles International Airport on average once per month for the better part of three decades. Just as the Golden Gate Bridge is always being painted, LAX is always under construction or renovation –in sometimes valiant, sometimes halfhearted , usually halting attempts to spruce up L.A.’s “nine terminals linked by a traffic jam.”  It’s one traffic jam that may finally end. Last week, Los Angeles World Airports released the environmental impact report  for what is the latest, and perhaps final, piece of major upgrades to LAX. The Landside Access Modernization Program (LAMP) includes a consolidated rental car center, two intermodal facilities, and other aesthetic and mobility upgrades. In other words, LAX’s overhaul is about everything but aviation. Previous attempts to comprehensively upgrade and expand the airport have failed every which way for decades. But this one seems serious. It includes a new rail station and people-mover, to tap into and leverage Metro’s Crenshaw and Green lines, and it has a possible 2024 Olympics in mind.  As we ponder the wonders of a consolidated rental car lot, a people mover, and replacement of or massive renovations to those nine (newly renovated) terminals, it’s important to understand that the state of LAX centers on not just aviation, mobility, or even economic development. It is also very much an element of land use, planning, and urban growth.  Most obviously, LAX would not be a global hub were its urban region not itself a global powerhouse. Unlike at the Dubais and Atlantas of the world, many people don’t change planes. More people actually get on and off airplanes at LAX than at almost any other major world airport. Angelenos are blessed to be connected to the world in ways that folks in Chico, Fresno, San Diego — or any other American city short of Chicago, for that matter — can hardly imagine. (I’m drafting this blog on a nonstop flight from Shanghai’s Pudong Airport, whose terminals are massive enough to make LAX’s terminals look like Cessnas next to A380s.) The Los Angeles Economic Development Corp. estimates that this kind of connectivity is good for over economic impacts of over $120 billion per year.  While LAX is a global institution, it is also a hyperlocal one. The new plan has arisen largely because of a settlement between LAWA and its neighbors in Westchester this summer. They and the airport had been bickering and negotiating over heaven and earth for as long as anyone can remember. The last major settlement was in 2006. A community of people living in largely middle-class, single-family homes, Westchester residents are quintessential NIMBY’s, opposing an admittedly concerning land use. The settlement's most important provision is its cap of 79 million annual passengers — a mere 4 million above its current usage. This keeps LAX the seventh-busiest airport in the world for the moment. But it all but ensures that it will soon be eclipsed by the likes of Shanghai, Istanbul, and Hong Kong. And the cap mirrors larger debates about growth in Los Angeles, in which opponents of growth cannot believe that the city can accommodate more residents, no matter what strategies the city lays out and no matter how much new transit is built. "These old ‘NO LAX Expansion’ signs are now officially vintage,” wrote Los Angeles City Councilmember Mike Bonin on his Facebook page. "From now on, everyone is saying yes to modernization and improving our airport and passenger experience, and saying 'hell no' to expansion." Of course, LAX only has such testy neighbors because, at this point, it’s an old airport. The empty land surrounding Mines Field filled in decades ago. Meanwhile, Pudong is a good 25 miles from central Shanghai. It too will get consumed one day.  Ironically, a shiny new LAX will probably be more appealing to travelers. They’ll get a far better first impression of our city, and it’s likely that more than 79 million people will want to fly through LAX. When demand butts up against the cap, it will all but ensure higher fares. Maybe this tension will finally lead to the holy grail of Southern California transportation: regionalization. Westchester residents have always wanted more passengers to use the region’s smaller airports, particularly Ontario, which, unlike Burbank and Long Beach, can and wants to expand. At long last, the City of Ontario took control of l ong-suffering ONT , meaning that expansion may be in the offing.  What of the design for the “new” LAX? Like those of every other modern airport, they are inevitably flawed but also probably fine. Conceptual renderings show sleek, generic people-mover stations and similarly inoffensive designs for the other facilities. I happen to think that many of the new mega-airports, like Pudong, Beijing, Guangzhou, Dubai, and Bangkok are over-engineered and inappropriately massive. LAX will always be intimate by comparison. At least it feels like it was designed by humans and not, say, a self-aggrandizing totalitarian government.  Now that LAX’s future is certain and Ontario controls its own density, there’s only thing left to do: reopen Palmdale Airport and finish that little high-speed rail link we’ve always talked about.  Image courtesy of LAWA.

A longtime anti-poverty lawyer and his wife have lost an appellate case against the City of West Hollywood in which they challenged the city’s imposition of inclusionary housing fees on their project. The ruling strengthens the power of local governments to enforfe inclusionary housing policies, partly by reinforcing an appellate court ruling from San Jose last year. Shelah and Jonathan Lehrer-Graiwer sued West Hollywood over a wide variety of fee-related issues on their 11-unit Croft Avenue housing project, including the inclusionary housing fees, which totaled more than $500,000. But the Second District Court of Appeal rejected a wide variety of arguments and said the city had acted properly under the Mitigation Fee Act (AB 1600) in setting out an overall schedule for inclusionary housing fees. Instead, the Second District ruled that the fees were appropriately based on the city’s overall lack of affordable housing. Writing for a unanimous three-judge panel, Justice Victoria Chaney said that “the purpose of the in-lieu housing fee here is not to defray the cost of increased demand on public services resulting from Croft’s specific development project, but rather to combat the overall lack of affordable housing.” Relying on California Building Industry Assn. v. City of San Jose (2015) 61 Cal.4th 435 , she added: “This type of fee is not ‘for the purpose of mitigating the adverse impact of new development but rather to enhance the public welfare by promoting the use of available land for the development of housing that would be available to low- and moderate-income households.’” The Lehrer-Graiwers, operating as 616 Croft Ave. LLC, have sought for many years to demolish two single-family homes just south of Melrose Avenue in West Hollywood and replace them with an 11-unit project. (Jonathan Lehrer-Graiwer was for many years a lawyer with the Western Center on Law and Poverty and later worked on many social justice cases as a lawyer in private practice.) The Lehrer-Graiwers won city approval for the project in 2005 but because of the downturn in the economy did not seek to pull permits until 2011. At that time, the city demanded that they pay higher fees totaling $580,000, including $540,000 for the inclusionary housing fee. The Lehrer-Graiwers paid the fees under protest and sued They challenged the city’s fee ordinance both on its face and as applied to their project. The appellate court concluded that the facial challenge was time-barred because the ordinance was adopted 10 years before the lawsuit was filed. More importantly, the appellate court rejected the as-applied challenge as well. The Lehrer-Graiwers made a wide range of arguments, including the idea that the fees were really taxes under Proposition 218. The court rejected all these arguments. Most important, the appellate court concluded that the inclusionary housing fees did not need to be tied to the impact of the Lehrer-Graiwers’s project but, rather, could be part of an overall effort to tackle the affordable housing problem in West Hollywood. First, the court concluded that the burden of proof that the fees are reasonable lies with the city, not with the developers. The Lehrer-Graiwers had argued otherwise, citing Prop. 218. But citing San Jose , the court said: “The purpose of the in-lieu housing fee here is not to defray the cost of increased demand on public services resulting from Croft’s specific development project, but rather to combat the overall lack of affordable housing.” Among other things, the court ruled on Ehrlich v. City of Culver City (1996) 12 Cal.4th 854, which distinguished between fees charged on a project basis and fees charged as part of an overall city policy. Partly based on this reasoning – and again relying on San Jose – the court said the challenge should not have been based on the application of individual fees to an individual project. “Although the fee must be reasonable, the inquiry is not about the reasonableness of the individual calculation of fees related to Croft’s development’s impact on affordable housing,” the court wrote. “The inquiry is whether the fee schedule itself is reasonably related to the overall availability of affordable housing in West Hollywood.” The Case: 616 Croft Ave LLC v. City of West Hollywood , No. B266660 (September 23, 2016) The Lawyers: For 616 Croft Ave (the Lehrer-Graiwers): David Lanferman, Rutan & Tucker, dlanferman@rutan.com For City of West Hollywood: Michael Jenkins ( mjenkins@localgovlaw.com ) and Christi Hogin ( hogin@localgovlaw.com ), Jenkins & Hogan Never forget to clean your HTML code and double check your content before publishing an article!

Reversing an appellate court decision, the California Supreme Court ruled Tuesday that courts should substitute their “abstract” judgment for the lead agency’s judgment as to what constitutes a “new” project that requires more extensive environmental analysis. The ruling appears to clear up a conflict between appellate rulings from different districts. But the plaintiffs said they still believe they can win the case on remand. The case involved a proposed building program at College of San Mateo, a community college located in the City of San Mateo, that would have involved demolishing some buildings and renovating others. Initially, the college certified a mitigated negative declaration for the building program. Years later, however, the college changed the building program so that some buildings that would have been demolished would be renovated, while the Horticulture Building, which wraps around a horticultural garden, would be demolished. Concluding that the change did not constitute a “new project” under the California Environmental Quality Act, the college issued an addendum to the MND. A group of residents and students calling themselves Friends of the College of San Mateo Gardens sued and won in both San Mateo County Superior Court and the First District Court of Appeal. But in a unanimous decision, the Supreme Court reversed the First District. “When an agency proposes changes to a previously approved project, CEQA does not authorize courts to invalidate the agency’s action based solely on their own abstract evaluation of whether the agency’s proposal is a new project, rather than a modified version of the old one,” wrote Justice Leondra Kruger in an exceptionally clear and well-written argument. “… An agency that proposes project changes … must determine whether the previous environmental documents retains any relevance in light of the proposed changes and, if so, whether major revisions to the previous environmental document are nevertheless required due to the involvement of new, previously unstudied significant environmental impacts. These are determinations for the agency to make in the first instance, subject to judicial review for substantial evidence.” That was the important legal ruling, and it was pretty clear. Sabrina Teller, a lawyer, for Remy Moose & Manley who argued the case for the college, told SFGate : “The court is still urging a deferential standard.” However, Kruger acknowledged that the case before the Supreme Court did not address all issues in the case – including the question of the legal validity of the CEQA Guidelines sections that allow an MND addendum on a modified project rather than an environmental impact report. That’s one reason why the plaintiffs say they are confident of victory on remand. Susan Brandt-Hawley, lawyer for the plaintiff, said she is still hopeful that the lower courts will distinguish the original and revised project in such a way that her client will win. “Here we have an addendum to a neg dec, and the neg dec was for a preservation project. And the new addendum (actually therefore a revised neg dec) is for a demolition project,” she said in an email to CP&DR. The controversy in the case revolves around so-called “Building 20,” the college’s horticulture building and an adjacent garden that students and nearby residents value for its peacefulness. In 2006, the college adopted a building program that called for retention of Building 20 and demolition of other buildings on campus. The college also certified an MND for the project. Five years later, however, the college changed the building program, calling for renovation of the other buildings and demolition of Building 20 and the garden, along with replanting some of the herbs and bushes in the garden elsewhere on campus. The Friends group sued. In an unpublished opinion three years ago, the First District Court of Appeal ruled against the college, concluding that as a matter of law the 2011 building program was a new project rather than a modified project. The First District relied heavily on Save Our Neighborhood v. Lishman (2006), 140 Cal.App.4 th 1288. In that case, the Third District concluded that the question of a new or modified project was a “threshold question of law”. The following year, the Second District issued a somewhat conflicting ruling in Mani Brothers Real Estate Group v. City of Los Angeles (2007), 153 Cal.App.4 th 1385. In that case, the court found that a 3.3-million-square-foot project was a modification of a 2.7-million-square-foot project on which the city had done an EIR 15 years before. The Second District criticized Save Our Neighborhood , saying it undermined judicial deference of agency decisions. The appellate court in the College of San Mateo case acknowledged this conflict but used the Save Our Neighborhood reasoning, saying that “it is clear from the record tha tht enature of the project has fundamentally and qualitatively changed to the point where the new proposal is actually a new project altogether.” In her ruling for the Supreme Court, Kruger rejected the Save Our Neighborhoods reasoning put forth by the plaintiffs in this case. She wrote that this approach “would assign to court the authority – indeed, the obligation – to determine whether an agency’s proposal qualifies as a new project, in the absence of any standards to govern the inquiry.” She added: “ o ask whether proposed agency action constitutes a new project, purely in the abstract, misses the reason why the characterization matters in the first place….A decision to proceed under CEQA’S subsequent review provisions must thus necessarily rest on a determination – whether implicit or explicit – that the original environmental document contains some informational value.” The Case: Friends of the College of San Mateo Gardens v. San Mateo County Community College District , S215061 (September 19, 2016) The Lawyers: For Friends: Susan Brandt-Hawley, susanbh@preservationlawyers.com For College: Sabrina Teller, steller@rmmenvirolaw.com

Wal-Mart’s trying hard to be green. And, despite the arguments of a local citizen group in Ceres, one appellate court has concluded that this isn’t a problem under the California Environmental Quality Act. In this case – involving a Wal-Mart in Ceres – the Fifth District Court of Appeal ruled that the mere fact that a project increases the amount of recycling – or includes biodegradable plastic – doesn’t trigger a requirement for environmental analysis in a project’s environmental impact report. A group called Citizens For Ceres challenged the EIR in court on several grounds. The group was represented by Brett Jolley, a Stockton lawyer who often represents citizen groups opposing Wal-Mart projects in the Central Valley. On the recycling question the Fifth District said: “Unlike traditional waste disposal methods, such as landfilling, recycling is not itself an environmental problem, but is instead a solution to the problems presented by those traditional methods.” Therefore, the issues related to recycling are, by definition, not environmental problems. “ e agree with Wal-Mart and the city that when a project will result in increased demand for recycling services, this often can be treated as an economic rather than an environmental impact and need not be analyzed in the EIR.” The case also dealt with some interesting issues involving the economic rationale for a statement of overriding considerations under CEQA, which is required to approve a project in the face of significant impacts. The citizen group had challenged the statement of overriding considerations, saying the project would not generate increased tax revenue and more jobs as the city and Wal-Mart claimed. But the court said the record contained “substantial evidence of probable benefit” and basically said judges don’t have to be economists. In a followup to a previous appellate ruling, the court overruled the trial court and decided that Wal-Mart should not have been barred from recovering the $48,000 cost of preparing the administrative record in the case. The court also rejected the citizen group’s argument that the EIR did not adequately deal with issues associated with possible urban decay, saying that the city had adequately conditioned the project with requirements that Wal-Mart maintain the store it would be abandoning until a new tenant is found. The proposed development project is a 300,000-square-foot retail center known as Mitchell Ranch Center, which would be anchored by a 190,000-square-foot Super Wal-Mart that includes 56,000 square feet for groceries. The non-grocery portion of the store is comparable in size to an existing Wal-Mart in Ceres that would be closed as a result of this project’s construction. The project’s approval process and EIR dragged out for several years and at one point Wal-Mart bought the property from the underlying developer and became the applicant. Citizens For Ceres brought a very wide-ranging legal challenge to the EIR, but both the trial judge and the appellate court ruled in favor of the city and Wal-Mart on all counts. The appellate court’s ruling on the recycling question may be an important precedent. Citizens For Ceres had argued that the city should have assessed the environmental impact of the recycling created by the project because Wal-Mart uses a biodegradable plastic known as polylactic acid, or PLA, in its packaging. Polylactic acid is sometimes known as “corn plastic”. The city documented that its current recycling facilities had more than enough capacity to handle the additional material from the Wal-Mart. But Citizens’ consulting engineer made the following argument about why the city should have done an environmental analysis on the recycling: PLA can compromise other plastic in the waste stream, which can reduce the opportunity to recycle the other materials, which in turn could threaten the city’s ability to meet the state’s AB 939 recycling targets. The city’s response was that PLA is already in Ceres’ waste stream. The city separates PLA out of the waste stream after recycling is picked up and then sends it to the landfill, where it biodegrades, so therefore there is no environmental impact worth analyzing. The Court of Appeal acknowledged that the amount of recyclable waste would go up because of the Wal-Mart project, but concluded: “This is substantial evidence that the project will cause an increase in recycling; but as we have explained, an increase in recycling in itself is not an adverse environmental impact. It is not substantial evidence that the increase may be more than the city’s recycling contractor can handle. For that reason, it does not support a fair argument that there is a significant impact needing discussion in the EIR.” Regarding PLA, the court noted: “Because of the sorting problem (PLA products cannot be recycled with other plastic and must instead be separated and either composted or landfilled), a major increase in PLA waste from a proposed project could conceivably lead to a reduction in recycling and an increase in landfilling.” However, the court concluded: “There is no evidence of this type of problem in this case, however.” The discussion of the statement of overriding consideration could be important as well, because the Court of Appeal concluded that courts don’t have to second-guess a lead agency’s analysis of the economic benefits of a project. Ceres had hired Bay Area Economics to do an economic analysis. BAE found that the project would increase sales tax receipts by $327,000 per year and increase the number of jobs over the current Wal-Mart fom 375 to 580, in large part because of the other stores and restaurants that would be located in the center. Citizens For Ceres challenged all these numbers and BAE’s underlying assumptions. Among other things, Citizens argued that many of the new jobs would be part-time. Indeed, Citizens submitted as evidence a report from the San Diego County Taxpayers Association, released in 2000, on the subject of Wal-Mart and part-time jobs – but the city submitted a letter from the association three years later saying the report was outdated. The appellate justices decided that it was not their job to second-guess an economic analysis: “It is not our role to make a factual finding about whether the project will truly benefit or harm the job market. It is not enough for a challenger to present some evidence opposed to the agency’s findings, for we do not resolve conflicts in the evidence under the substantial evidence standard. The only question is whether the record contains substantial evidence of a probable benefit. It does.” On the question of who should bear the cost of preparing the voluminous administrative record in the case – often an contentious issue in CEQA cases – the court overruled the trial judge and said Wal-Mart could recover the costs. However, the court remanded to the trial court the question of how much cost Wal-Mart could recover. The administrative record was the subject of a previous appellate ruling on the Ceres Wal-Mart -- Citizens for Ceres v. Superior Court (2013) 217 Cal.App.4th 889. In that case, the court ruled that pre-approval communications between the city and Wal-Mart were not privileged, which of course increased the cost of preparing the administrative record. On the urban decay question – a topic of increasing interest in CEQA lawsuits – the appellate court reaffirmed a trend from other cases and narrowed the issue only to the physical deterioriation of vacant stores. The court ruled that a mitigation measure requiring Wal-Mart to beef up maintenance of its old store while it is vacant was sufficient to take the urban decay issue down to a level of insignificance. The court declined to rule more expansively about the likely impact of the new Wal-Mart on a wide range of other stores in the vicinity. The Case: Citizens of Ceres v. City of Ceres , No. F071600, September 12, 2016 The Lawyers: For Citizens for Ceres: Brett Jolley, Shore, McKinley & Conger, bjolley@smcslaw.com For City of Ceres: Edward A. Grutzmacher, Meyers, Nave, Riback, Silver & Wilson, egrutzmacher@meyersnave.com For Wal-Mart: Edward P. Sangster, K & L Gates, ed.sangster@klgates.com

Several of the smallest pieces in the de Young Museum’s extraordinary retrospective of California artist Ed Ruscha depict abnormally vast western landscapes. Thin strips of prairie stretch just above the bottom edge of the frame. Attenuated horizons separate starry skies from a dark continent. Extreme horizontality makes even Ruscha’s tiniest images appear immense, capturing the grandeur and loneliness of Earth and sky. Upon this template, telephone poles recede achingly into a blue-black dusk ( Let’s Keep in Touch ). Two oil derricks stand at attention on opposite sides of a canvas ( Well, well ). Clusters of tiny lights huddle close under a starry sky ( Two Similar Cities ). In America’s Future , an empty horizon at dusk extends forever with every hue between yellow and taupe looming above. These are the pieces that gave the exhibit its title: “Ed Ruscha and the Great American West.” Though Ruscha depicts landscapes, he is not a landscape painter. For him, the western landscape turns into a symbol of itself, representing all the Americanisms – individualism, freedom, expansion, commercialism – that derive from having so much space on our hands. It also gave rise to a particularly type of urbanism, of which Ruscha is a remarkably astute critic. Even Ruscha’s emptiest landscapes are foils for the peculiar type of city that arose in the West. Raised in Nebraska, he migrated to Los Angeles in the 1960s, to discover the beauties and ironies of this corner of America. He looks with bemusement upon the place to which so many Midwesterners escaped. At age 78, he continues to work there. Most of all, Ruscha is to painting what the team of Robert Venturi and Denise Scott Brown are to architecture. Both were inspired by roadside landscapes of the West and fascinated by signage. Both balance aesthetic appeal with visual and verbal irony. Not coincidentally, humor for both of them comes in the form of unexpected use of text. “The Great American West” traces Ruscha’s interest in unexpectedly diverse subject matter while keeping a firm gaze on the ties that bind his works: from monumental paintings of gas stations, to silhouettes of coyotes, to raw words, to photographs of the entire Sunset Strip. The work of humans -- power poles, warehouses, streets, and, of course, written language -- inhabit every Ruscha image. But humanity is deliberately absent. Buildings are rendered deliberately sterile and ironic, curious interlopers on God’s creation. His Standard Oil stations recede so perfectly into the vanishing point, they look more like architectural renderings than they do actual structures. Ruscha’s trademark words are disembodied too, appearing as if stenciled on to the canvas by God, every bit as inscrutable as the landscape itself. This effect reaches its apotheosis in Ruscha's series of the Hollywood Sign, in which words and landscape really do intersect. Even Ruscha’s photos are vacant. They reveal not architectural beauty but rather its banality. (The de Young, an earnest work of starchitecture by Herzog and de Mueron , is the opposite of all which fascinates Ruscha.) He captures empty of parking lots and backyard pools with undisturbed surfaces. The same goes for his conventional cityscapes and his Sunset Strip photos, which look as evacuated by atomic blast or urgent Sunday sermon. Ruscha’s West is not a place for people. The second room of the exhibit includes pieces from Ruscha’s most deliberately urban series of paintings. Ruscha’s “city” paintings are not paintings of cities at all but rather are works of abstract expressionism that ostensibly refer to Los Angeles. Ruscha depicts the city as a grey plain of static, like an untuned television, interrupted by lines representing streets, with names that mean something only to veteran Angelenos: Oxford, Beverly, Western; Laurel Canyon/Ventura Boulevard; Sunset, Coronado. In Sunset-Gardner Cross, the entire Los Angeles Basin extends up the canvas to meet with a bonfire of yellows, oranges, and reds. His most haunting cityscapes depict Los Angeles from above at night, with beads of light forming straight lines and right angles on the “Plains of Id,” as Reyner Banham called the working-class flats of the Los Angeles basin. His most nonsensical: the words La Brea, Sunset, Orange and De Longpre arrayed in their proper geographic arrangement against the backdrop of what appears to be Mount Everest. Ruscha reduces the city to cartographic signifiers: lines and names. This is the bureaucratic vision, familiar to thoughtful planners, that has sapped so many American cities of their would-be texture, soul, and joy. Those implacable white dots on the prairie connote our cities in their entirety – they signify locations, but they are not places. Ruscha offers a chance for planners to step away from the trappings of bureaucracy and literally envision cities and landscapes in new ways. You cannot think about cities without thinking the landscapes atop and within they sit. Too often the quality of California cities, especially their pedestrian environments, is inversely proportional with the grandeur of landscape. Los Angeles is not warm, and not always humane, because it was not designed to be warm and humane. The sterile, empty, vacuous Los Angeles that Ruscha depicts is a place of our own making. (The lone exception is San Francisco, which Ruscha has not, as far as I know, ever depicted.) Too many planners of past generations approached western cities the way Ruscha does – but without the humor and without the harmlessness of paint and canvas. They created real places that are inhuman and hew more towards commerce and automobiles than to joy and communion. Ruscha’s lines are the placeless thoroughfares down which we drive. Unlike the abstruse, theory-based creations of many of Ruscha's late 20th century contemporaries (particularly abstract expressionists), his images are aesthetically gorgeous, with the precision of a graphic designer, sense of proportion on par with Renaissance masters, and command of color rivaling Mark Rothko. These images deliberately belie what many of our cities are like. Viewing the west through Ruscha’s eyes offers planners to think about the opposite of roadside America: the vibrancy of center cities so often dismissed as “crowds;” the pedestrian environments so ripe for redesign; the public spaces that we forgot to build as we expanded; and, most of all, the zoning laws, street patterns, and real estate typologies that pretend as if we can expand infinitely, all the way to that long horizon. Ed Ruscha and the Great American West On view until October 9, 2016 Tickets $22 De Young Museum San Francisco Catalog 244 pages FAMSF Publication / University of California Press $55 Hardcover All images courtesy of Fine Arts Museums of San Francisco .

Gov. Jerry Brown and the California Legislature have moved the goalposts again on climate policy, meaning the state’s metropolitan planning organizations and local governments are going to have to go into stretch mode again in focusing land use policies and transportation investments on reducing greenhouse gas emissions.  Furthermore, the pressure on the MPOs and the local governments will depend on lot on whether California retains the embattled cap-and-trade program or ditches it. No cap-and-trade will almost certainly mean bigger targets in the MPOs’ sustainable communities programs. In early September, Brown signed two climate change bills: SB 32 , the long-awaited successor to AB 32, and AB 197 . The first bill will put a lot of pressure on the regional sustainable communities strategies by essentially doubling the GHG emissions reduction target between 2020 and 2030. The second is designed to protect low-income communities from bearing too much of the brunt of the cap-and-trade program – meaning the bill could alter or threaten the cap-and-trade program altogether. Up to now, the state’s SCSs have been focused on AB 32’s target of reducing GHGs back to 1990 levels by 2020 – approximately a 20% reduction. And the evidence is that this effort is actually working. The ARB recently reported that the state’s inventory of greenhouse gas emissions dropped from 484 million metric tons of CO2 equivalent (MMTC02e) in 2007 to 441 MMTC02e in 2014. The 2020 target is 431 MMTC02e. There has been a lot of legal wrangling about what the state’s MPOs should do in the years after 2020, with environmentalists arguing that an 80% reduction target by 2050 should be taken into account even though it is contained only in an executive order, not state law. (This dispute is still pending before the California Supreme Court in a case involving the San Diego Association of Governments.) SB 32 moots this argument in part by codifying the goal of a 40% reduction by 2030 – a target that would almost certainly require the state to be on a trajectory toward 80% by 2050, no matter what the Supreme Court rules in the SANDAG case. In the second round of SCSs, as Josh Stephens recently reported , the big MPOs have been focusing mostly on incremental changes, not major shifts that would move toward 40% by 2030 or 80% by 2050. Moving to the SB 32 target will almost certainly require a much bigger shift. How big a shift, however, depends in large part on how the Air Resources Board decides to implement SB 32. In the wake of AB 32 in 2006 and SB 32 in 2008, the ARB implemented a system that required the various MPOs to hit certain per-capita GHG targets in their regional transportation plans. This system has driven transportation investments in the RTPs (which are usually combined with the SCS) and, indirectly, may be affecting land-use decisions at the local level. It is not clear, however, how much of the SB 32 burden ARB will require the SCSs to bear. In June, the ARB issued a concept paper in anticipation of SB 32’s passage, which highlights four possible approaches to hitting SB 32’s 2030 target. The concept paper states that increased emissions reduction will have to come from the sustainable communities strategies but does not seek to quantify that amount. The paper does, however, make it clear that the SCS targets will depend a great deal on the state’s overall approach – and especially whether the state’s cap-and-trade pollution reduction program stays in place. Cap-and-trade is under increasing pressure from both polluting industries and environmental justice advocates. Under the cap-and-trade program, polluting industries – especially those that burn fossil fuels and therefore contribute to GHG emissions -- bid in an auction to purchase “allowances” that permit them to pollute. Cap-and-trade revenues currently fund a wide variety of state programs relevant to planning and development, including high-speed rail and the Strategic Growth Council’s affordable housing and sustainable communities program, which has $400 million for development grants this year. But the fossil-fuel industry is always targeting the program and revenues from this year’s auction were anemic.  Meanwhile, AB 197 could threaten the cap-and-trade program from the opposite end of the ideological spectrum. From the beginning, environmental justice advocates have feared that cap-and-trade could harm poor neighborhoods disproportionately because ARB’s goal is to reduce the overall amount of emissions, not reduce emissions in specific locations. This question is always an issue in cap-and-trade programs. The Environmental Protection Agency’s cap-and-trade program for acid rain pollutants is always running into resistance from specific states that fear they will be at a disadvantage. For example, Ohio’s emissions might actually go up if Ohio polluters can buy pollution rights from locations, such as Florida or Pennsylvania, where pollution is cheaper to build up. Similarly, EJ advocates fear that polluting industries which purchase cap-and-trade allowances in California might choose to distribute those pollution allowances in a way that reinforces existing pollution patterns by focusing on existing older facilities near poor neighborhoods.  AB 197 seeks to mitigate that problem by requiring ARB to take “social costs” into account in setting up the cap-and-trade program. How, exactly, ARB is going to implement AB 197 is anybody’s guess . But it could mean that the cap-and-trade program is changed, reduced, or eliminated. And that will inevitably put pressure on the SCSs. Although the ARB concept paper does not quantify SCS emission reduction under different scenarios, it does generally characterize the degree of difficulty in each case. If cap-and-trade is retained, ARB reports, 2035 SCS targets will be subject to “increased stringency.” The same would be true of the state adopts a carbon tax, which is essentially a different way as the cap-and-trade program to get to the same goal.  Take away cap-and-trade or an equivalent policy, however, and the lift for SCSs becomes bigger. ARB outlined two alternative scenarios without a cap-and-trade program. The first focuses on reducing industrial pollution and requires “more ambitious targets” for SCSs. The second focuses on reducing transportation-related pollution – the other big contributor to GHG emissions – and, not surprisingly, calls for “ambitious stringency” in SCS targets. It’s not clear what “ambitious stringency” means, but it sounds pretty ominous. And that means more SCS fights ahead.

Despite consecutive seasons of miserable-to-average snowfalls in recent years, California ski resorts are moving ahead with ambitious expansion and development plans. In fact, less snow may simply mean that they’re being more aggressive about offering year-round attractions.  The latest development comes from Squaw Valley. The proposed Village at Squaw Valley would transform the mountain’s currently threadbare base area into a multi-use destination, with a hotel, retail and restaurant complex, 850 residential units, and a “Mountain Adventure Center” with indoor and outdoor recreational activities. Dreamt up and developed in relative haste for the 1960 Winter Olympics, Squaw Valley has never had a town or a base area to match those of rivals like Mammoth Mountain, Heavenly Valley, or Vail. After five years and over 400 community meetings, the Squaw Valley Specific Plan was approved, 4-2, by the Placer County Planning Commission in August. It will soon go before the Placer County Board of Supervisors. It is believed to be the largest project to be proposed in the county in recent memory.  Located just outside the Lake Tahoe Basin, northwest of the lake, the resort sits in an ecologically sensitive — and politically contentious — area (see prior CP&DR coverage ). Environmental groups and other activists pushed to reduce the project’s impacts and increase community benefits.  Before-and-after images of the Village at Squaw Valley.  "Squaw Valley Ski Holdings is prepared to significantly invest in the offering at Squaw Valley to position the resort as a true four-season destination, provide more year-round jobs, on-site affordable workforce housing, tens of millions of dollars in other benefits to our local community, and assist in stabilizing the North Lake Tahoe economy,” said Andy Wirth, president and CEO of Squaw Valley Ski Holdings, LLC, in a statement following the vote.  The plan for the village went through four major iterations, each one smaller than the last. The current version is half the size of the original proposal and, according to the resort, and is now only 38 percent of what is allowable per the Squaw Valley General Plan and Land Use Ordinance, which was adopted in 1983. Of the site’s 93 acres, only 12 will contain buildings. Ninety percent of the development will take place on current parking lots and other non-pristine land. Full build-out is planned to take 25 years.  Beyond the land-use plan, the resort has pledged to institute a range of mitigation measures to ease and offset environmental impacts. The resort will dedicate several million dollars to projects including stream restoration, upgrades to public parks, and support for public transit, plus a one-time $20 million payment to upgrade transit infrastructure. The plan estimates local tax revenues of $22 million annually that the county can allocate for environmental causes and social services.  "You already have a lot of established land uses that are primarily recreation- and-tourism based,” said Fisch. "If there is one specific issue area, that would be…the impacts of visitation because they inform the other impacts." The plan also estimates that by enabling visitors to lodge at the base of the mountain, rather than stay elsewhere and drive to the mountain, up to 2,000 trips per day may be eliminated from local roads on peak days.  Even these assurances do not comfort opponents of the current project. "The (environmental impact report) is simply fatally flawed," Richard Drury, an opponent of the project, told the Reno Gazette-Journal . He reportedly claimed that the plan’s figures on traffic and water availability cherry-picked different years with relatively few visitors and relatively high precipitation. "That is the kind of preposterous analysis that really requires a second look.”  Sierra Watch, a local environmental group, led an aggressive campaign to “keep Squaw true.” Its website contends that the plan includes ten-story buildings and amounts to a "massive and misplaced megaresort.” The plan pledges an average building height of 67 feet, which it says is “comparable” to the height of existing buildings on the site.  Representatives of Sierra Watch did not respond to multiple requests for an interview.  "It is a project that is within the holding capacity of the existing Squaw Valley general plan in that the project proponents are actually seeking to entitle development that would otherwise be permissible,” said Alex Fisch, supervising planner with Placer County Planning Services. “If there is a broad point of consensus among everyone, it's that the resort base does need redevelopment and does need to be made modern…the issue is, is this the right project?" "Their issues range from the character of the plan area to issues pertaining to increases in traffic and corollary effects with greenhouse gases as well as impact to habitat,” said Fisch. He added that the environmental impact report lists ten un-mitigatable impacts.  Contacts & Resources The Village at Squaw Valley  Overview Placer County Planning Department Documents Alex Fisch, Supervising Planner, Placer County Planning Services  AFisch@placer.ca.gov Images courtesy of Squaw Valley Ski Holdings LLC.

When is a historic structure not historic – or, at least, when it is not historic enough to warrant environmental impact report under the California Environmental Quality Act? When a local government says so, because local governments are accorded deference by courts in reviewing their CEQA actions – at least in cases like this. At least that was the conclusion of the Sixth District Court of Appeal in a case involving a century-old railroad trestle in the Willow Glen neighborhood of San Jose. The case involves interpretation of a confusing section of CEQA regarding when an historic resource is subject to an EIR. In making the ruling, the court had to go deep into the rabbit hole of substantial evidence and fair argument. San Jose is planning to tear down the scenic trestle and replace it with a steel structure. In the process, the city concluded that the trestle was not an historic resources and therefore not subject to an EIR. San Jose adopted a mitigated negative declaration instead. Neighbors and historic preservationists sued over the CEQA action, claiming that there was a fair argument that the trestle was a historic resource and therefore an EIR should be required. Santa Clara County Superior Court Judge Joseph Huber ruled in favor of the neighbors, saying that a fair argument standard should apply. The city appealed but the neighbors tried to have the case declared moot because the city had already prepared an EIR, which it then used to re-approve the project. The court went ahead and considered the case anyway, saying the city’s could be still be required to vacate the approval depending on the outcome of the case. At issue was whether the city had to apply the “fair argument” standard to the question of whether an EIR was required under the CEQA – that is, is there a fair argument that the project would have a significant impact on the environment (in the case, on an historic resource), as required under one section of CEQA, Public Resources Code Section 21084.1. The law further says that just because a building or structure is not included in any state or historic register and doesn’t meet other criteria for historic significance doesn’t mean that the lead agency can’t still designate it as historic. The neighbors argued that this last provision should apply and the trestle should be considered a historic resource for CEQA purposes even though it had not been designated as historic in any other way. The court noted that the lead agency has to make a decision about significance based on the “preponderance of the evidence” and therefore the standard of review “logically must be whether substantial evidence supports the lead agency’s decision , not whether a fair argument can be made to the contrary.” Continuing, Justice Nathan Mihara wrote for the court: “Since the standard of judicial review for a presumptively historical resource is substantial evidence rather than fair argument, it cannot be that the Legislature intended for the standard of judicial review for a lead agency’s decision under the final sentence of section 21084.1 to be fair argument rather than substantial evidence…. “We conclude,” he wrote, “that the Legislature did not intend for the fair argument standard to apply to a lead agency’s decision that a resource is not a historical resource under the final sentence of section 21084.1.” He added: “To construe the statute otherwise would be inconsistent with the Legislature’s explicit provision authorizing a lead agency to find that a resource that was presumed to be a historical resource was not a historical resource if the lead agency found that a preponderance of the evidence supported its finding. We therefore conclude that the deferential substantial evidence standard of review is the correct standard to apply to the City’s finding that the Trestle is not a historical resource.” The court remanded the case to Judge Mihara to determine the merits of the MND’s determination that there was no substantial evidence that the trestle is an historic resource The Case: Friends of Willow Glen Trestle v. City of San Jose, No. H041563 The Lawyers: For Friends of Willow Glen Trestle: Susan Brandt-Hawley, Brandt-Hawle Law Group, susanbh@preservationlawyers.com  For City of San Jose: Katie Zoglin, Senior Deputy City Attorney, mailto:katie.zoglin@sanjoseca.gov