San Francisco's Transbay Transit Center is slowing taking shape in a hole south of Market Street. Three years of subterranean excavation are supposed to lead to steel beams for a five-story building that will begin to rise in 2014.  When  completed in 2017, the four-block-long transit center is expected to become a civic and regional landmark, with a large rooftop park, surrounded by numerous skyscrapers and a pedestrian-dense office, retail and residential community. Project boosters are referring to it as the Grand Central Station of the West. San Francisco officials are hoping the transit center helps redevelop the surrounding area into the densest neighborhood west of the Mississippi.  It's a far cry from what was once a light industrial neighborhood in the shadow of the city's downtown, located only a few blocks way. But the area has benefited from city policies that encourage development to migrate south from the city's financial district, as well as development sparked by the removal of the nearby Embarcadero Freeway after the 1989 Loma Prieta Earthquake. The new transit center will rise on the same spot as the city's Transbay Terminal, which served commuters from 1939 until 2010. The old Transbay Terminal was a rundown, forlorn structure on Mission Street, where streetcars once ended their routes across the Bay Bridge.  Starting in the 1950s, the terminal was strictly used by  buses, which arrived from throughout the entire Bay Area on special freeway offramps. But under the guidance of a Joint Powers Authority, composed of San Francisco officials and the Bay Area transit districts that used the old facility, a new terminal, with a new name--the Transbay Transit Center--is now being built at a cost of $4 billion.  The new center is supposed to bring together 11 transportation systems, and serve 45 million people a year. Some of the transportation systems don't yet service San Francisco, and funding for many of the projects isn't yet secured.  But project planners are thinking big. To encourage the transit-oriented development, the city has created a plan for 40 acres around the transit center, which includes generous upzoning of commercial properties, planned retail corridors, and pedestrian friendly amenities such as wide sidewalks and alleyways lined with townhomes.  Much of the new development is planned for land freed up by tearing down parts of the Embarcadero Freeway and one freeway off-ramp that once served the transbay terminal, according to Courtney Pash, assistant project manager for the Transbay Redevelopment Project Area, which is a successor agency to San Francisco's Redevelopment Agency. The revitalized area around the Transit Center is expected to have 4,600 housing units, with 25% of them affordable units. Many of the residences will be at the southern end of the redevelopment area along Folsom Street, complementing new residential construction in nearby Rincon Hill. Six million new square feet of new commercial and office space will be created, much of it in high rises. The skyscrapers are will be slender, to minimize shadows. The signature high-rise will be on Mission Street property that once was the front entrance of the Transbay Terminal.  Construction is expected to begin soon on a 1,070-foot-high, 60-story glass tower, designed by the firm of Pelli Clarke Pelli. The building, known as the  TransbayTransit Tower, will dwarf the city's Transamerica Pyramid by more than 200 feet when it is completed in 2017. Across the street from the Transbay Transit Tower, two additional towers are supposed to rise, with 1.2 million square feet and 605 condominiums, in a project spearheaded by TMG Partners. The two towers will be almost as tall as its neighboring tower, with a 59- story office tower and 56-story condo tower. Stephanie Reichin, a spokesman for the Joint Powers Authority, said there are  five other new high-rises planned in the area. The center's construction during the recession may have jump-started development in the area, which had seen many high rises built during before 2008. "A lot of development was planned prior to the recession and then stopped when it hit,"Reichin said. "When we started construction of the transit center in 2010, it was a sign of economic recovery and a catalyst for many developers in the area." It also helped that zoning increased to allow bigger, taller buildings. "For some of the parcels in the plan area, the allowable height was increased," Pash said ."The goal is to increase the density." "The goal for the area has always been to extend downtown south of Market," she  said. A successful redevelopment is evident a few blocks from the transit center, at Yerba Buena Gardens, where a park, a convention center and several museums and hotels all expanded the downtown core. Fears that the increased construction near the transit center might not withstand earthquakes have been addressed, Pash said. "All buildings have to meet the city's strict earthquake standards," she said. "The terminal and Transbay Tower exceed the city's standards." The office vacancy rate in San Francisco is currently at 8.7 percent, as San Francisco reaps the benefits of being at the northern arc of Silicon Valley.  The new transit center may also make commuting easier for the thousands of San Franciscans who now commute south to San Mateo and Santa Clara County, where many high tech companies are located. Pash said the transit center and surrounding area will feature 9.5 acres of parks, including a signature 5.4 acre park located on top of the transit center itself. The park will include a 1,000 person amphitheatre. Plans for the new transit center envision tying together 11 different transportation systems, although not all have yet been funded   One examples is California's high speed rail, with bullet trains beginning their journeys to Los Angeles there. But funding fights over that project, and opposition to its operation on the San Francisco Peninsula, have raised questions about whether it will ever be built. In addition, Amtrak is supposed to end its lines at the transit center, if Amtrak decides to deliver rail passengers to San Francisco. Caltrain, the peninsula's three-county rail service, is also supposed to terminate there, if money is ever found to extend the rail system from its current San Francisco terminus about a mile away. Plans also call for a people mover sidewalk to speed passengers from the center to a BART station in downtown's Embarcadero Center. Rendering of new Transbay Transit Center and office tower

The City of San Jose has won an important round in a potentially landmark chase challenging the legality of inclusionary housing ordinances in California. The California Building Industry Association has challenged San Jose's inclusionary housing ordinance, claiming that in adopting it the City did not make a necessary "nexus" finding. In essence, CBIA is arguing that an inclusionary housing requirement is an exaction and therefore cannot be imposed unless a reasonable relationship is proven between the development being approved (market-rate housing) and the impact being mitigated (the need for affordable housing). Santa Clara County Superior Court Judge Socrates Monoukian ruled in favor of CBIA. On appeal, however, the Sixth District Court of Appeal ruled that the inclusionary housing ordinance is an exercise of the police power, not an exaction, and therefore the burden of proof lies with CBIA, not with the City. The Sixth District remained the case to the trial court. It's a blow for the homebuilders, who have been trolling for a winning argument against inclusionary argument. Having lost Home Builders Ass'n of Northern California v. City of Napa (2001) 90 Cal.App.4th 188, 194 – in which the homebuilders claimed that inclusionary housing amounted to an unconstitutional taking – the builders now claim that inclusionary housing is an exaction. Inclusionary housing ordinances – requiring housing developers to set aside a certain percentage of their units as affordable or else pay a fee in lieu of that set-aside -- have become more common in California in recent years. According to one study in 2006, at least 30,000 affordable housing units have been constructed as a result of inclusionary requirements. However, the building industry has consistently argued against inclusionary ordinances, saying that they increase the cost of all housing and therefore actually make housing less affordable. In a 2009 letter to CBIA, Lynn Jacobs – then the state housing director and a former president of the Los Angeles BIA – stated that local governments should analyze inclusionary housing ordinances as a potential constraint to affordable housing when preparing their housing elements. San Jose adopted an inclusionary housing ordinance in 2010, which required residential developments of 20 or more units to set aside 15 percent for purchase at a below-market rate to households earning no more than 110 percent of the area median income. Developers had the option of providing the units off-site or paying a fee in lieu of providing the units. Relying on standards laid down in San Remo Hotel L.P. v. City & County of San Francisco (2002) 27 Cal.4th 643, and Building Industry Association of Central California v. City of Patterson <(2009)> 171 Cal.App.4th 886, CBIA filed a facial challenge to the ordinance, claiming that the City had failed to show a reasonable relationship between residential development projects and the inclusionary requirement, which it characterized as an exaction.  CBIA argued that the city's action lacked any "attempt to identify, much less to quantify, any 'deleterious public impacts' on City needs for affordable housing caused by new market rate development" and that the inclusionary percentages contained in the ordinance were arbitrary. Apparently seeking to distinguish this case from the Napa case, CBIA also went out of its way to make the point that it was not making a takings claim, which probably would have required an action for relief from a developer who had actually been subjected to the ordinances, rather than a facial challenge from a trade association such as CBIA. Judge Manoukian bought CBIA's argument, concluding that "the challenged portion of the ordinance bears no reasonable relationship to permissible outcomes in the generality or great majority of cases." The City and several affordable housing groups appealed the case to the Sixth District. They argued that the inclusionary housing ordinance should be considered a land use regulation enacted through as an exercise of the City's police power, not an exaction. For this reason, they claimed, the Court should have applied a difference standard of review -- giving great deference to the City – that required the Court to uphold the ordinance if it "merely has a reasonable relation to the public welfare" and also placed the burden of proof with CBIA, not the City. The appellate court sided with the City, reversed Manoukian's decision on the standard of review, and sent the case back to the trial court. CBIA argued that the inclusionary ordinance is an exaction because residential developers must "dedicate or convey property (new homes) for public purposes," or alternatively, pay a fee in lieu of "such compelled transfers of property."  However, the appellate court did not buy CBIA's argument. "This alternative portrayal of the inclusionary housing requirement misses the mark," the court wrote. "The IHO does not prescribe a dedication." The Court knocked down CBIA's arguments drawn from a whole series of exactions cases – most especially San Remo, which required hotel owners to provide affordable housing units as compensation for lost affordable housing when single-room occupancy hotels in San Francisco were converted to tourist use.  "We thus conclude that the standard articulated in San Remo is inapplicable here, and that the Ordinance should be reviewed as an exercise of the City's police power," the Court ruled. The Court did caution that "this does not entail unthinking acquiescence to the City's stated goals." But it did review case law on exercise of police power at some length and reiterated that the burden of proof lies with CBIA, not with the City.

The U.S. Supreme Court has tightened the screws on exactions, ruling in a case from Florida that government agencies must follow the Nollan/Dolan doctrine – even when a permit is denied and when the exaction involves money as well as property. At a glance, the ruling would appear to strike down the California Supreme Court's 17-year-old ruling in Ehrlich v. Culver City , 12 Cal.4th 854, which gave cities and counties more leeway on exactions when they are imposed as part of a general plan policy rather than a one-off permit.  The Nollan/Dolan doctrine demands that exactions imposed on developers be closely connected to the development's impacts. In Nollan v. California Coastal Commission , 483 U.S. 825 (1987), the Supreme Court ruled that there must be a "rational nexus" between a development and an exaction. In Dolan v. City of Tigard , 512 U.S. 374 (1994), the Supreme Court ruled that there must be "rough proportionality" between the cost of the impact created and the cost of the exaction demanded.  In Koontz v. St. Johns Water Management District , the court ruled 5-4 – along predictable ideological grounds – that these two rules apply in a situation where a property owner declined to accept the exactions and therefore the permit was denied. The court also ruled that there is no difference between an exaction of property and an exaction of money. Writing for the five-justice majority, Justice Samuel Alito resolved the most basic question in the case by saying that an actual taking did not have to occur in order for the property owner to have his constitutional rights violated. "Extortionate demands for property in the land-use permitting context run afoul of the Takings clause not because they take property but because they impermissibly burden the right not to have property taken without just compensation." He added: " he impermissible denaiol of a government benefit is a constitutionally cognizable injury." Writing for the four-judge minority, Justice Elena Kagan predicted that the ruling's effects would be widespread and confusing because ordinary fee setting will now be subject to federal constitutional tests. "The Federal Constitution … will decide whether one town is overcharging for sewage, or another is setting the price to sell liquor too high."  The facts of the case will be pretty familiar to anybody who follows California land-use regulation and wetlands regulation in particular. Property owner Cory Koontz bought a piece of land along the East-West Expressway east of Orlando in 1972, then lost part of it via eminent domain for an extension of the highway in 1987. Koontz was left with 14.2 acres of land, of which 12.8 acres is located in the Riparian Habitat Protection Zone (RHPZ) of the Econlockhatchee River Hydrological Basin and therefore subject to regulation by the water district. In 1994, Coontz sought approval to develop 3.7 acres of the property, of which 3.4 acres were wetlands and 0.3 acres were uplands. This was the portion of the property closest to highway. The water district agreed to permit this development so long as Koontz dedicated the remaining 10.5 acres to a conservation area and engaged in a variety of offsite mitigation efforts, including replacing culverts and plugging drainage canals several miles away. As an alternative. the water district said he could reduce his project to one acre and dedicate the rest to the conservation district. Koontz rejected the offsite mitigation and the alternative and the water district denied his permits. Writing for the court, Alito stopped short of deciding whether the property owner was entitled to monetary damages and remanded the case to Florida courts for further discussion. As stated above, by subjecting all exactions to the Nollan/Dola n test, Koontz would appear to overrule the longstanding Ehrlich rule in California, which permits more flexibility on exactions if they are imposed as part of an overall policy such as a general plan. Koontz would appear to eliminate any such flexibility. The Koontz ruling put to rest the idea that a conservative justice – possibly Antonin Scalia – would cross over to the liberal camp on the argument that the Takings clause cannot be applied in a case where a permit was not issued and therefore nothing was actually taken. He appeared to be leaning in that direction during oral argument. In the end, however, he sided with his conservative brethren. Koontz is notably for its unusually cross-referential banter between Alito and Kagan. Each refers to the other's opinion repeatedly and refutes it at length. As is his custom , Alito cloaked his ruling in arcane cases from long ago, a palpable anti-government streak (he used the word "confiscate" four times), and an unwillingness to play out the consequences of the ruling. Indeed, he spends a significant amount of time in his ruling explaining why the court does not need to go further than simply rule whether the Nollan/Dolan doctrine applies. He bases his opinion in large part on the doctrine of "unconstitutional conditions" – a doctrine rarely relied on, at least overtly, in land use cases – and his view that exactions are similar to liens, a notion that has rarely been put forth previously in a land use case. By contrast, Kagan's dissent is written in a straightforward fashion that is much more accessible to the lay reader and deals more extensively with the likely consequences of the ruling. Indeed, throughout both opinions, it is sometimes not clear whether or not the two justices are even talking about the same case. Kagan's interpretation of the interplay between the water district and Koontz is far different from Alito's, and this interpretation plays a big role in her conclusions. Alito accepted Koontz's version of the facts, saying that the water district gave Koontz two alternative mitigation proposals, both excessive. Kagan's dissent oozed skepticism about this black-and-white view of what happened, saying instead that the water district had simply proposed two mitigation options as possibilities and invited Koontz to negotiate further. " he District never made a demand or set a condition – not to cede an identifiable property interest, not to undertake a particular mitigation project, not even to write a check to the government. Instead, the District suggested to Koontz several non-exclusive ways to make his applications conform to state law." This interpretation led her to argue that if even casual negotiations between government agencies and developers are subject to the Nollan/Dolan rule, then government agencies will simply stop negotiating with developers and turn permits down – not a good outcome for developers.

Voters in the North San Diego County city of Encinitas have narrowly approved  a ballot initiative limiting building heights to two stories in most parts of the city and requiring future changes in height and density to a vote. Proposition A emerged in part from the city's raucus debate over a General Plan Update, which highlighted the question of whether taller buildings and greater density. The measure passed with 51% of the vote Tuesday The City of Encinitas is a collection of older communities near Carlsbad that were combined when the city was incorporated in the 1980s. These communities include downtown Encinitas and the beach town of Leucadia. Downtown Encinitas has seen several three-story buildings constructed in recent years, including one designed around a Whole Foods supermarket. North County has always been a hotbed of ballot-box zoning, though the pattern has slowed down considerable in recent years Much of the debate over Proposition A revolved around the state's density bonus law, which permits developers to increase density in exchange for providing affordable housing. Several councilmembers who were originally in favor of Proposition A later changed their position, arguing that the density bonus law would permit developers to end-run the two-story height limit but do so with less city control. In an effort to blunt support for Proposition A, the City Council voted to eliminate an existing exemption to local voter-approval provisions. Previously existing Encinitas ordinances already required voter approval for large projects, but permitted the council to waive that requirement with a four-fifths vote. The council eliminated that exemption in May as the election heated up.

You might wonder how many times I can write a blog highlighting how different California is from the rest of the country when it comes to density. After all, I started on this screed back in 2001, when I co-authored Who Sprawls Most?   And just a month ago I wrote a blog noting that, according to the Census Bureau, California metros are densifying while their counterparts elsewhere are not. But evidence just keeps on coming. Now the Environmental Protection Agency has provided a compelling long-view look at density patterns in major metropolitan areas in the United States � which reveals this pattern has held over the past 60 years. The other day EPA issued the second edition of its turgidly titled Our Built and Natural Environments: A Technical Review of the Interactions Between Land Use, Transportation, and Environmental Quality , an overview of a wide variety of environmental impacts of human settlement and the built environment. And buried in that report � Exhibit 2-2 on page 8 � is a pretty interesting table examining metropolitan population growth versus urban expansion in the last 60 years, since the Census Bureau first started keeping track of such things in 1950. What the table shows is that for the 39 largest metro areas that were delineated in 1950, population grew 150% over the 60 years while the urbanized area expanded 400% -- meaning urbanized area grew 2.5 times faster than population. (The Census defines an urbanized area as any Census tract that has a population of 1,000 persons per square mile or more, so it tends to underestimate low-density sprawl � but it's still a useful measure.) Some of the statistics are truly frightening. For example, Metro Pittsburgh's population grew by 19% while its land area grew by 257%. Metro Detroit's population grew by 36% while its land area grew by 216%. Metro Boston's population grew by a healthy 87% -- but its land area grew by 665%. These are the parts of the country that are truly sprawling. And California? Nope, not sprawling. In fact, San Diego, LA-Orange County, the Inland Empire and San Jose all saw its population grow faster than urbanized area � something that only seven of the 39 metro areas achieved. Overall, California's metros added 240% to its population and only 195% to its land area. For the non-California metros among the 39 metros studied, population grew by 150% and land area grew by 455%. This chart showing these figures for selected metros in California and elsewhere gives the general picture. (I derived this chart from the table in the EPA report.) It's interesting to note that Miami and Houston followed the California pattern, as did � to a lesser extent � Dallas and Houston

On Tuesday, San Diego Mayor Bob Filner announced that he had selected Bill Fulton, this publication's founding editor and publisher, as the city's new planning director.  Rather than comment on this surprising turn of events, we thought we'd simply provide a rundown of blog and media coverage. The surprise announcement took place early Tuesday morning before an assembled crowd that included some 500 employees of the city's Development Services Department. Mayor Filner's official press release can be found here. Almost before the press release was up, however Voice of San Diego had posted a blog highlighting "Four Things to Know" about the new planning director. (We particularly liked "He's Kind Of A Big Deal") Later in the day, Voice posted a short Q&A that was conducted right after the announcement, which included discussions about San Diego's neighborhoods, Civic San Diego, use of Specific Plans, and Fulton's views on redevelopment.  Later in the day, Roger Showley, the Union Tribune's longtime real estate writer, posted his version of events , complete with a photograph of Fulton with former planning director Bill Anderson and former city architect Mike Stepner. Showley and Fulton have known each other since the 1980s, when they were young real estate journalists together. Later, NBC San Diego  and the Ventura County Star , Fulton's hometown newspaper, also published articles -- and for once, the Star did not put the story behind its pay wall.

The latest illustration of intergovernmental non-cooperation examines the circumstances in which cities can route sewer lines through county rights of way, all without county approval. The facts involve the City of Los Angeles upgrading the capacity of its line to its Hyperion Treatment Plant in Playa Del Rey. Serving the coastal portions of the City, the existing 48-inch line was installed in 1958 but lacked the capacity to serve major storm events. The City studied various options for installing a new 54-inch diameter line. Most of the routing would take place in City streets, but one route involved use of public streets and a public parking lot located in the jurisdiction of the County. For environmental reasons, the City ultimately approved the alignment involving County streets. The County filed a petition for writ of mandate, alleging violations of the Public Utilities Code and CEQA. The trial court rejected the CEQA claim, but granted relief pursuant to the Public Utilities Code claims, effectively holding that County approval was required. The City appealed. The appellate court reversed the trial court. The City made two claims. First, the City argued that it possessed the inherent police power to construct in the County's street. Alternatively, it argued that Public Utilities Code sections 10101 through 10105 gave it that authority. The Court of Appeal declined to accept the City's �inherent power" argument, finding that sufficient authority in the Public Utilities Code supported the City's action. In interpreting the statutory scheme, the appellate court recognized that cities have the express right to build utilities lines outside of its borders. (Public Utilities Code section 10101.) If the proposed line is to be located in another city, then sections 10102 and 10103 call for interagency review, with the option to go to court to resolve the necessity of the proposed use in the neighbor city right of way. However, the court concluded that these procedures do not apply if the affected right of way is a county, as a county is not a municipal corporation but is a political subdivision of the state of California. In those circumstances, the city can proceed when the alignment is necessary and convenient. The appellate court stated that the appropriate form of judicial review was ordinary mandamus, and that the decision of the approving city would not be overturned unless arbitrary or capricious, a very deferential standard. The appellate court concluded that the trial court had effectively reweighed the evidence, and failed to adhere to the necessary level of deferential review as to what was necessary or convenient. The matter was reversed and remanded to the trial court to apply the correct standard of review. County of Los Angeles v. City of Los Angeles (March 14, 2013, B236732) ___Cal.App.4th ___.

Early one Sunday morning in early February, the South Bay Power Plant in Chula Vista – a fixture on San Diego Bay for decades – was blown up. But it wasn't because terrorists had targeted the plant. It was because city and port officials – along with a developer and environmental groups – had finally reached agreement, after 14 years of negotiation, on how to move forward with a development project. The Chula Vista Bayfront Master Plan – which calls for the construction of thousands of hotel rooms, a commercial harbor, a conference center, and 1,500 townhomes on a small portion of the 556-acre site – is being touted by land use experts around Southern California as a win-win for the developer, the City of Chula Vista, the Port of San Diego, and environmental groups.  The deal was completed after 14 years of negotiation and threatened lawsuits and even included the participation of a former Center for Biological Diversity employee who wound up working for the developer, Pacifica Companies. The Coastal Commission approved the project unanimously, leading Pacifica's Alison Rolfe to quip: "I got a call from the governor's office. They never heard of unanimous support!" The key deal point appears to be a land swap between Pacifica and the Port, which allowed Pacifica to take control of the developable portion of the property while the Port focused on conservation. But ultimately it was the willingness of the Bayfront Coalition – an assemblage of environmental groups that threatened litigation over the project – to sit down and negotiate pre-lawsuit that appeared to make the biggest difference. In the end, the parties signed two settlement agreements – a document typically negotiated after a lawsuit is filed, not before – in order to nail down the deal points. "One thing about CEQA," says Rolfe, who previously worked for both the Center for Biological Diversity and the Chula Vista mayor's office. "Mitigations don't always get done, which is a nice way of saying it. We needed to have more than mitigation in a CEQA document, we want a stipulated settlement agreement and some enforcement up-front. Not a lawsuit, just let's agree, so we have the confidence to know what's going to get done after the project goes through and not rely on CEQA." The story of the Bayfront Master Plan begins in 1999, when the Port of San Diego purchased the South Bay Power Plant, a 700-megawatt plant that had sat on the bay in Chula Vista since 1960. The Port leased the plant to power generating companies until 2010, when it was decommissioned. Beginning in 2002, however, the Port and the city began to negotiate the possibility of a development project on the property. "It is definitely a scar," said Ann Moore, president of the Port board. "We took a look at it and thought, we need to bring this down." Now a lawyer with Norton, Moore and Adams in San Diego, Moore is a former Chula Vista city attorney. "Early on there wasn't 100% commitment at the political level," says City Manager Jim Sandoval. "This coalesced over time. At the Port, we have one vote out of seven. When you are dealing with projects like this and deal with more than one agency, it takes a tremendous amount of financial resources. Unfortunately we have been having to cut gardeners and custodians, but we hung onto this project team, because of the benefit to the community." He said the port and the city each took on what they were good at – large-scale planning in the case of the city, real estate expertise in the case of the Port. The entire deal could have been scotched, however, if environmentalists had decided to fight it and litigate.  But the environmental coalition took a different approach. "What we decided to do," says Laura Hunter of the Environmental Health Coalition, "was come in out of our foxholes, just try to sit down together and look at anything that could be done, listen to each other about what their interests are. We started looking out for each other's interests. Sitting in one of our analysis meetings, the guy from the business association began to learn about (bird) nesting, and I learned what internal rate of return was." She added: " Instead of spending our energy vilifying each other, we could talk about what the issue really is, once you get a trustful communication going, then all things are possible." The critical element of the deal was a 3-for-1 land exchange between the Port and Pacifica, with the Port surrendering 35 acres of developable land in exchange for 97 acres of conservation land. Pacific surrendered a net of more than 60 acres, but of course received acreage in return that could actually be developed. The power plant itself was located on the bay side of I-5 at approximately L Street. The Chula Vista Marina is located just north of the site, at approximately J Street. The Sweetwater Marsh National Wildlife Refuge is located even farther north, at approximately E Street. Under the land transfer, Pacifica gave the Port 95 acres of land adjacent to the wildlife refuge for conservation purposes. In exchange, the Port gave Pacifica 35 acres of developable land adjacent to the Marina. Because Pacifica now has a smaller footprint on which to build, the developer had to propose building heights of up to 200 feet. Ordinarily, such tall buildings might stimulate strong opposition, but opposition in this case was mitigated by two factors. First, the buildings were replacing an eyesore that had blocked the bay from the city for 50 years. And second, it was clear that the tall buildings were paying for the conservation land via the land trade. "Once everybody understands the underlying principal of why we had to do that , everybody was advocating for the land trade," said Rolfe. Sandoval said the main goal was to protect view corridors, rather than simply keep buildings short. "I've never met anybody who can see through a  one-story building," he said. "To me it's more important to protect view corridors than building heights. Yet that's something people never do." Pull-quote "I got a call from the governor's office. They never heard of unanimous support!"

In Alliance for the Protection of the Auburn Community Environment v. County of Placer , the Third District Appellate Court held that California Code of Civil Procedure section 473 does not provide relief from a petitioner's mistake that resulted in the late filing of a CEQA petition. While the provisions of section 473 are to be liberally construed, the statute cannot be construed to offer relief from mandatory deadlines deemed jurisdictional in nature such as Public Resources Code section 21167. In 2008, Bohemia Properties, LLC submitted an application to the County of Placer (County) for the development of a 155,000-square-foot building. The County required that an environmental impact report (EIR) be prepared for the project. After the requisite hearings, the Planning Commission certified the EIR and approved the project in July 2010. Alliance filed an appeal to the Board of Supervisors, which was heard on September 28, 2010. The Board denied the appeal and again certified the EIR and approved the project. The County timely filed and posted a notice of determination on September 29, 2010. Pursuant to Public Resources Code section 21167(c), an action to set aside an EIR must be filed within 30 days from the date of the filing of the notice of determination. In this case, the Alliance was required to file its CEQA petition on or before October 29, 2010. However, Alliance did not file its petition until three days later on November 1, 2010. Bohemia filed a demurrer to the petition, alleging the petition was not timely filed. Alliance filed a motion for relief under CCP section 473, as well as an opposition to the demurrer, on the grounds that the late filing resulted from a "miscommunication with the attorney service as to the deadline for receipt of the Writ." The trial court sustained Bohemia's demurrer without leave to amend and denied Alliance's motion for relief on the grounds of mistake and excusable neglect on the grounds that the 30-day statute of limitations contained in Public Resources Code section 21167 is mandatory and does not provide for an extension of time to file a petition based on a showing of good cause. In interpreting CCP section 473, the appellate court looked to the California Supreme Court case of Maynard v. Brandon (2005) 36 Cal.4th 364 ( Maynard ). In Maynard , the Supreme Court considered whether relief under section 473 was available for a party who failed to comply with the 30-day statute of limitations in the Mandatory Free Arbitration Act. The Court held that it did not, noting that section 473 provides relief only for procedural errors (i.e., untimely demands for expert witness disclosures, etc.). The appellate court also looked to Kupka v. Board of Administration (1981) 122 Cal.App.3d 791, wherein the court held that section 473 could not operate to provide relief for the late filing of a petition for writ of mandate to review an administrative decision on the basis that statute of limitations are not flexible in nature, but are firmly fixed, unless the legislature expressly provides for an extension based on a showing of good cause. The court of appeal in this case noted that while the provisions of section 473 are to be liberally construed generally, and further, that CEQA should be broadly interpreted to protect the environment, CEQA also clearly requires prompt resolution of lawsuits claiming violations of it. Alliance argued that other courts have required relief to CEQA's 30-day statute of limitations, but the court distinguished each case Alliance offered in support of its argument and specifically noted that none of the cases proffered by Alliance related to section 21167. Moral :  If you are a petitioner and you are going to file a petition for writ of mandate to challenge an agency's actions under CEQA – whether that challenge is procedural or substantive in nature – compliance with the statutes of limitations under Public Resources Code section 21167 are mandatory. CEQA provides three distinct statutes of limitations - a 30-day, 35-day, and 180-day statute of limitations - depending on the specifics of the CEQA challenge and whether a notice of exemption or notice of determination was properly filed and posted. Strict compliance is required as failure to timely file a petition for writ of mandate pursuant to CEQA will not be excused.   Alliance for the Protection of the Auburn Community Environment v. County of Placer (April 2, 2013, C067961) ___Cal.App.4th ___; 2013 Cal. App. LEXIS 256 .

Is 55 stories too high for a building in Hollywood? Neighbors think so -- especially when it will dwarf the iconic Capitol Records building next door. Opponents recently circulated an online petition called  "Stop the Millennium Hollywood Project", which calls for the project to be modified "to a reasonable scale". You can also hear a debate about the project -- featuring CP&DR publisher Bill Fulton -- on a recent episode of Which Way LA ?  San Diego Mayor Plans to Separate Planning Department From Development Services  New San Diego Mayor Bob Filner is appears ready to pull the planning department out from under the development services department -- four years after they were merged.Last week, Kelly Broughton, director,  of the city's planning department and development services, department announced that he was stepping down to take a similar position with the city of Chula Vista. Director Broughton's vacancy has created an opportunity for the mayor to reshape San Diego's planning and development services and fulfill his initial goals for separating the two departments. This separation will allow the planning department to focus on neighborhood-level decisions and prioritize for a more efficient community plan update process. Director Broughton will stay on for another month while the mayor looks for an interim director and works out the details for the departments' new arrangement.  Alhambra Says...It's Time to Complete the 710 Freeway! Los Angeles Times Last week, the city of Alhambra voiced its support to complete the 710 Freeway via a tunnel that would connect the 710 Freeway and the 210 Freeway. To raise awareness, Alhambra's mayor has proclaimed July 10th as "710 Day" in the city with a possible streetfair and other public outreach efforts. The controversial tunnel has resisted by its surrounding communities for years, arguing that the extension would bring negative traffic impacts into their neighborhood. The MTA is currently undergoing an environmental study that options different strategies for completing the freeway with a final draft of the study due next year.  Fresno City Council Supports Health-Sciences Campus Outside City Limits The Fresno Bee Despite support for the proposed health campus to be located in downtown Fresno, City Council supported the developer's plans to build outside the city's limits at Millerton Lake. According to the project developer, the space needed for the campus is larger than any downtown site can provide. Council's support for the project (location) also added to the divide between Council Members and the Mayor's efforts to focus new development in Downtown Fresno. The new university will open next year and the city will still be able to weigh in on the project during the planning process. Millerton Lake was one possible site for the the campus that eventually became UC Merced.

So, we all woke up this morning to the news that Eric Garcetti – longtime city council president, councilmember from Hollywood, and son of former L.A. District Attorney Gil Garcetti – will almost certainly be the next mayor of Los Angeles. What does this mean for planning and development in L.A.?  Well, first of all, far more than his opponent Wendy Greuel, Garcetti has been a high-profile political figure on planning generally and smart growth and infill in particular. At the same time, however, his reputation around town has always been that he's not as much of a policy heavyweight as Greuel. And, of course, he's got to compete with the legacy of Antonio Villaraigosa – the politician who can legitimately go down in history the guy who changed L.A. from a car town to a transit town and set the table for "elegant density".  So what does the guy do? Garcetti has always been an eloquent and forceful advocate for a truly urban Los Angeles. And while it's made him the darling of the planners, it hasn't always gone down well with his constituents, which has caused him to straddle the issue on occasion.  Witness his approach to the controversial, 55-story Millenium Towers project in Hollywood. On the one hand, Garcetti has held out Hollywood as the "template" for the new Los Angele s.  On the other hand, after he finished first in the primary, he came out against the Millenium project .  The practical reality is that as mayor he'll have to straddle more than ever. That's what big-city politicians have to do.  But Garcetti's got a great opportunity here to push L.A. in the right direction. He's a charismatic young politician who talks about this issue in a winning way – maybe the first truly urban mayor the city has ever had. He's not saddled with the baggage of controversy that always followed Villaraigosa around and, thanks to Measure R, he doesn't have to fight the battle to actually build the transit. Villaraigosa already won that battle for him.  What Garcetti has to do is seize the moment. The city is changing. The transit is getting built. A lot of people are already bought into the idea of "elegant density". Even as he straddles, Garcetti can bring his constituents along by pushing the idea that new development in L.A. must revolve around the rail transit stations – responding to emerging market demand, improving those neighborhoods, and protecting existing single-family neighborhoods all at the same time. Eric, it's your moment. Jump on the train and get moving this morning.

After eight years in elected office in California, I can tell you that I often fell into the same trap as everybody else: chasing revenue. When you're up against the wall on budget problems, any new revenue – especially a boost in property or sales tax revenue – looks like the solution to all your problems. And it is – at first. How many times have I heard a city councilmember or a city manager say they're just trying to hang on for one more year until the revenue from some new subdivision "comes online." But as I've written before in this space ("The Multari Curve" ), the revenue boost is short-term and over time it's eaten up by increased service costs, meaning you always have to approve another subdivision to make up for the deficits on the one you approved in the past. Yesterday, Smart Growth America – the organization I spend most of my time working for – released a national report called " Building Better Budgets , " which makes the argument on a national scale that smart growth-style development can actually improve the fiscal situation of local governments by increasing revenue and decreasing cost. (Full disclosure: I was the project manager for this report.) Building Better Budgets has already gotten a lot of publicity in the blogosphere (see, for example, the APA's blog . And it's mostly a review of research nationally – not a California-specific piece of work. But there are a couple of things worth calling out for California planning practitioners. The first is the simple fact that infill development properly done, can have a huge positive impact on the bottom line in a city's operating budget. This is the main thing we were shooting for in Building Better Budgets. The argument that smart growth and infill development lower the cost of up-front infrastructure was well established. But the report highlighted the argument about operating costs as well.  For example, Smart Growth America scooped up some research from Charlotte, North Carolina, which found that conventional suburbs cost four times as much for the fire department to serve than smart growth neighborhoods – and SGA concluded that a smart growth approach could avoid the need for Charlotte to build two fire stations when the city is built out, saving about $13 million in capital costs and $8 million per year in operating costs. As a former elected official, the bottom line for me is that a smart growth development approach is a way out of the fiscal box. Conventional suburban development always loses money in the end. Traditionally, the only ways around the problem were to keep approving subdivisions (simply pushing the day of reckoning out into the future), charge enormous impact fees (which simply shift the cost rather than reduce it), or raise taxes. Smart growth can lower the cost of development, which is good for everybody – developers, homebuyers, taxpayers – and increase more revenue. It's a game-changer.