In a potentially important decision for environmental advocates, the Third District Court of Appeal has ruled that environmental groups are eligible for attorney's fees in a Bay-Delta water lawsuit, even though public agencies won similar litigation. The success of the Central Delta Water Agency and the South Delta Water Agency in their lawsuit against the State Water Resources Control Board does not mean the environmentalists were automatically barred from receiving attorney's fees in a similar suit against the state, the court ruled. "That the success they achieved was the same success the Central Delta parties achieved does not justify a denial of fee award under the private attorney general theory," the court ruled. In 1995, the State Water Resources Control Board (SWRCB) adopted the Bay-Delta plan that, among other things, established minimum monthly average flow rates on the San Joaquin River at Vernalis, a few miles west of Modesto. The flow rates were intended to help double the population of Chinook salmon in the river. A few years later, the board completed a water rights proceeding (called Decision 1641) that allocated responsibility for meeting the flow rates in the Bay-Delta plan. Decision 1641 essentially determined how the salmon's needs would impact water rights holders. In 2000, the two Delta water agencies sued the SWRCB over Decision 1641, arguing it conflicted with the Vernalis flow objectives in the 1995 plan. At about the same time, the Golden Gate Audubon Society and a collection of other environmental groups also sued the board, arguing that Decision 1641 was illegal and "ignored" the salmon-doubling objective in the 1995 plan. A trial court ruled for the water agencies and directed the board to comply with the Vernalis flow objectives. However, the court ruled against the environmentalists. After numerous parties appealed, the Third District ruled that the SWRCB had failed to implement the 1995 Bay-Delta plan and that Decision 1641 was effectively an improper amendment of the plan. The appellate court agreed with the environmentalists' contentions regarding minimum flows necessary to double the salmon population. The court directed the board to conduct further administrative proceedings either to assign responsibility for meeting the 1995 flow objective, or to modify the objective ( State Water Resources Control Bd. Cases , (2006) 136 Cal.App.4th 674). Back at the trial court, Central Delta Water Agency, South Delta Water Agency and the environmental groups all sought attorney's fees. Sacramento County Superior Court Judge Roland Candee granted the water agencies 40% of their fee request based on the "partial and limited success" of their litigation. Judge Candee rejected the environmentalists' request, concluding the Audubon Society and other organizations had not proven their role was necessary in light of the water agencies' victory. The environmentalists appealed, and the Third District overturned the lower court. At issue was interpretation of the "private attorney general doctrine" in Code of Civil Procedure § 1021.5. The statute is intended to provide a bounty for pursuing public interest litigation. In 1993, the Legislature amended the law so that a public entity may receive attorney's fees. "In the wake of the 1993 amendment, the purpose of § 1021.5 is to encourage parties — whether public or private — who do not necessarily have adequate financial resources to do so to pursue important public interest litigation for the benefit of the public at large, or at least for the benefit of more than just themselves or their constituents," Justice Ronald Robie explained in the Third District's unanimous decision. There was no doubt the litigation was a private attorney general action because, in fact, the attorney general's office was defending the SWRCB, the court noted. Judge Candee, however, refused to grant the environmentalists attorney's fees because the water agencies were enforcing the same public interest. The Third District, though, said it was impossible under the statute to call either the water agencies' or the environmentalists' roles in the litigation superfluous. " e conclude that where (as here) a public entity receives fees under § 1021.5 for succeeding in important public interest litigation, a private party who succeeded alongside that public entity cannot be denied a similar award of fees simply because the success might have been achieved by the public entity acting alone," Robie wrote. The Third District sent the case back the trial court to determine the amount of fees the Audubon Society and the other environmental groups may recover. The Case: State Water Resources Control Board Cases , No. C055104, 08 C.D.O.S. 3461, 2008 DJDAR 4212. Filed March 26, 2008. The Lawyers: For SWRCB: Mark Poole, state attorney general's office, (415) 703-5582. For the Golden Gate Audubon Society: Stephan Volker, (510) 496-0600.

OK, so everybody's bought into the idea that Sacramento's Blueprint process is a national model of regional smart growth planning. But what happens next in this cooler-than-we-ever-imagined metropolis? Depending on who you talk to the answer is: • Continue to play the "carbon card" for all its worth – while resisting the idea of city carbon budgets. • Try to create an "enlivened democracy" to match the regional vision. • Use public dialogue to have a more "real" discussion about the risks involved in daily life. • Identify the emerging "walkable urban neighborhoods" and get ahead of the curve in investing in them. • And, hey – how about building more stuff around those light-rail stations? These were but a few of the many ideas kicked around Friday at a forum on "the sustainable region" sponsored by the Sacramento section of the American Planning Association's California Chapter . (I was also one of the panelists at this event.) Blueprint mastermind Mike McKeever, executive director of the Sacramento Area Council of Governments , said flat-out: "We're certainly going to continue to play offense." And he said the organization would continue to use reduced carbon emissions as a policy lever to promote implementation of the Blueprint. Asked by architect Bruce Race to envision how life in 2050 would be different than now – when, under AB 32, Californians will have to live with a carbon footprint only 5% the size of today's – McKeever responded by talking about democracy rather than the built environment. He said the Blueprint succeeded because "ordinary folks" participated in shaping the smart growth vision underlying the Blueprint and he predicted that a lively democracy will be required to implement it. West Sacramento Mayor Christopher Cabaldon said that local governments don't do a good job of truly discussing the relative risk of different development patterns and, as a result, often oppose smart growth because of people's fears. "We need to be able to assess whether somebody's more likely to get in an accident driving their daughter to school than the daughter is likely to be abducted walking three blocks to the school," he said. (Cabaldon is currently running for the Assembly.) In a keynote lunch speech promoting his new book, The Option of Urbanism , developer and real estate analyst Christopher Leinberger said Sacramento needs to be more aggressive in promoting "walkable urban neighborhoods," especially around light-rail stops. Leinberger recently came out with a Brookings paper that tries to identify the "walkable urban neighborhoods" in the 30 largest metro areas in the nation. Practically everybody – including bloggers on this web site – has criticized Leinberger's methodology. But he made some good points in his talk. He said the region should be especially aggressive in predicting and planning for where the new "walkable urban neighborhoods" will emerge over the next 10 to 20 years. "You've got three right now," he said.. "You'll have 10 in the future. Where are the others going to be?" He didn't say what the three are, but his paper seems to indicate that they are Downtown-Midtown, Roseville, and Arden – which, if true, really does call his methodology into question!- However, his point – a good one – is that based on national real estate research it is possible to identify where the next "WUs," as he calls them, will emerge. Cities can then plan their future, invest in necessarily infrastructure, and set up management structures such as business improvement districts. And while they are at it, the cities can pick up land in these areas on the cheap at the front end, in order to create a land supply for affordable housing later on. On Friday night, after the event, I tested out the sustainable metropolis by going to the River Cats baseball game at Raley Field in West Sacramento. My companion and I walked the four miles or so from East Sacramento to the ballpark – it was a lovely evening – but decided to transit back. The shuttle bus from Raley dumped us off at the 8th and Capitol station on Capitol Mall a few minutes after 10 – unfortunately just a minute or two after the 10:04 had left. (If only that second-to-last Tucson batter had taken the third strike instead of getting a hit!) With 30-minute headways, we had time to kill, so we walked over to the Archives Plaza station in front of the Secretary of State's office. Still nothing much going on – hardly anything open, nobody around. The 10:34 showed up on time, and we were back at the 39th Street station, near UC Davis Medical Center, in less than 10 minutes. But it looks like Leinberger was right on one thing: Build more stuff around the light-rail stations that are already built. — Bill Fulton

The Ninth U.S. Circuit Court of Appeals has permitted a property owner's defamation lawsuit against a San Diego County supervisor to go forward. A divided three-judge panel overturned a lower court's ruling that Manufactured Home Communities' lawsuit against Supervisor Dianne Jacob was a SLAPP suit. The Ninth Circuit determined that a jury could find some of Jacob's challenged statements were "actionable as provably false assertions of fact." Manufactured Home Communities (MHC), which is now called Equity Lifestyle Properties, is familiar with federal and state courtrooms in California. The Chicago-based company — controlled by real estate investor Sam Zell, who bought the parent company of the Los Angeles Times in 2007 — owns about 300 mobile home parks with 100,000 spaces across the United State and Canada. In California, the company has challenged local mobile home rent control ordinances and their implementation up and down the state. In July 2002, MHC initiated phased rent control increases at three mobile home parks in unincorporated San Diego County by sending 90-day notices to residents. All three parks are in Jacob's district. In November of 2002, Jacob issued a news advisory saying MHC was preying on elderly tenants with fixed incomes. She also told residents of one park that MHC enjoyed forcing old people out of their homes, suggested MHC had engaged in fraudulent actions and said the district attorney was considering civil or criminal action against the company. Further, she sent a letter to Zell complaining of rent gouging, residents being forced to surrender their homes, and rents above fair market rates. In a number of later instances, Jacob told news reporters that MHC had failed to clean up a sewage spill in one of its parks, that the company preyed on older people and that it made a practice of buying distressed properties in order to run out older residents. In late 2003, MHC sued the county, arguing the county had violated its equal protection, due process and First Amendment rights. Later, the company modified its suit to claim Jacob violated MHC's First Amendment rights, defamed the company and interfered with prospective economic advantage. District Court Judge Napoleon Jones rejected all of the claims, ruling for the county and Jacob. With regard to Jacob's allegedly false statements, the court found that MHC's action was a strategic lawsuit against public participation (SLAPP). On appeal, the Ninth Circuit upheld nearly all of the lower court's ruling. However, it determined that Judge Jones erroneously dismissed the action regarding Jacob's statements. Jacob and the county argued that her statements were merely opinion, not provably false assertions that would be subject to legal action — an argument that Jones accepted. But two of three judges on the Ninth Circuit panel accepted MHC's contention that some of the statements referenced specific circumstances or facts and may be proven false. "While the district court may have been correct in its assessment that each of these statements is properly interpreted as an assertion of opinion rather than fact, a reasonable factfinder could disagree with that assessment," Judge Diarmuid O'Scannlain wrote for the majority. "It does not seem unreasonable, for instance, that a jury could conclude Jacob meant as a matter of fact that MHC had lied about the sewage situation, or that she meant it as fact that MHC had a reputation for driving out elderly tenants." " reasonable listener could conclude that Jacob's statements were founded in part on an objective, factual basis, especially in light of Jacob's role as a public servant and her having made some of the relevant statements in response to a new reporter's questions," O'Scannlain continued. The Ninth Circuit sent the case back to the lower court for further proceedings. In a dissent, Judge Consuelo Callahan said MHC's suit was a SLAPP. "Manufactured Home Communities, Inc., is attempting to chill the valid exercise of constitutional rights of freedom of speech and petition for the redress of grievances by filing a lawsuit against county Supervisor Dianne Jacob based on media interviews about an issue of public controversy," Callahan wrote. Furthermore, Callahan wrote, MHC did not "demonstrate the falsity of any underlying facts." The Case: Manufactured Home Communities, Inc. v. County of San Diego , No. 05-56401, 08 C.D.O.S. 2709, 2008 DJDAR 3325. Filed March 6, 2008. The Lawyers; For MHC: David Bradford, Jenner & Block, (312) 923-2975. For the county: William A. Johnson Jr., county counsel's office (619) 531-4860.

The principles of smart growth should also be used as the principles of adapting land use patterns to climate change. That's what Ron Sims, executive of King County, Washington, said in so many words while speaking April 12 at forum on climate change and cities. If we're going to be serious about adapting to climate change — and Sims contends we must be  — then we have to change our land use patterns, he said. With its almost total reliance on single-occupancy vehicles, suburban sprawl is not acceptable. Rather, density, mixed-uses and transit are key because they require less energy consumption for daily life and conserve natural areas needed for soaking up carbon and managing resources. Fortunately, the smart growth approach also produces fewer greenhouse gas emissions than suburbia does. "As a nation, we have not planned for global warming," Sims said. "There isn't a national policy at all on adaptation. … We are devoid of one at our peril." There may be no elected official in the country more passionate about the need to adapt to climate change than Sims, who is in his third term as the leader of King County. During his presentation, Sims said that both reducing greenhouse gas emissions and preparing for climate change are crucial. The King County climate plan adopted in 2007 contains a goal of reducing greenhouse gas emissions by 80% by 2050. One way of cutting emissions is greatly increasing public transit, which has historically been lacking in the Seattle area. Transit is a priority for Sims. The other side of the coin — adaptation to climate change — is one that many people are missing, Sims contends. But Sims, whose county lies between Puget Sound and the Cascade Mountains, has made adaptation a cornerstone policy. So when scientists predicted that the typical snow level will rise by 1,000 feet in elevation, that torrential rainstorms will hit the region, and that sea level will rise, Sims and other officials went to work rebuilding levees to withstand far bigger floods than the region has seen previously. Sims summarized the King County adaptation strategy as preserve the forest, improve the transit system, and better manage water resources. Land use is a key component of adaptation, according to the King County climate plan, which calls for weaving climate change information into regular updates of the county's comprehensive plan and future capital improvement plans. Sims was speaking at the two-day journalists forum on climate change and cities sponsored by the Lincoln Institute of Land Policy, The Nieman Foundation for Journalism at Harvard, and the Harvard University Graduate School of Design. Sims is not the only one talking about adaptation to climate change these days. As Bill Fulton reported yesterday , speakers at recent California Air Resources Board and Boalt Hall Law School conferences said that adaptation is an area where planners and policymakers can make a difference. Following Sims at the Massachusetts event was James Levitt, who is in charge of conservation innovation at Harvard Forest . Levitt said that the discussion of adaptive management of conservation lands is only beginning. And, he suggested, it is beginning very late, as there is an immediate crisis. Levitt cited a Scripps Institute study released earlier this year that said there is a 50% chance Lake Mead will go dry by 2021. Lake Mead, of course, is the primary water supply for Las Vegas, and also provides water to Arizona and Southern California. We all know how long it takes to develop new water supplies. Levitt also told the story of the pine beetle. The pest has decimated forests in the West and, in less than a decade, has killed about half of the pine trees in British Columbia, according to Levitt. Yet, the U.S. Forest Service has no comprehensive strategy for dealing with the pine beetle, said Levitt, who pointed the finger directly at the Bush administration. A tax on carbon emissions and a cap-and-trade system are critical for raising funds to adapt conservation programs to a changing environment, Levitt argued. Levitt's presentation got me thinking about the habitat conservation plans and natural communities conservation plans that are so common in California. The plans are intended to designate and preserve habitat for rare plants and animals for 50 to 75 years. But if Levitt is right and environmental conditions really are changing almost before our eyes, the plans may not be worth the dead trees on which they are printed because changing weather patterns and the arrival of invasive species will doom the very plants and animals we're trying to save. – Paul Shigley

The passage of AB 32 – California's climate change law – has focused the attention of Left Coast policy wonks like a laser beam on reducing greenhouse gas emissions. And as we have reported over and over again on this website , land use patterns are at the center of this debate. But adapting to a warmer world may actually be a bigger land use policy question. Indeed, reducing emissions may not be the most important -- or the most urgent -- or even the most solvable land use policy issue associated with global warming. There's also the issue that experts call adaptation – adapting to the consequences of climate change, including sea-level rise, smaller snowpacks in the Sierras, and changing agricultural conditions that might require different cropping patterns. Experts speaking at two events last week – the Haagen-Smit Symposium sponsored by the California Air Resources Board and a conference in Berkeley sponsored by the California Center for Environmental Law and Policy at Boalt Hall Law School  – raised the adaptation issue as one that is important – and also one that planners and policymakers can actually do something about.  Especially striking were the comments of Deputy Resources Secretary Tony Brunello who showed a schematic at both events depicting the impact of climate change on the Sacramento-San Joaquin Delta. Rising sea levels will bring salt water intrusion from the San Francisco Bay to the west – and rapid snow melts could bring more fresh water in from the Sierra to the east. The Delta is already one of the most contentious environmental issues in California and climate change could only ramp up the contentiousness. (National Public Radio recently ran a story about climate change and the Delta .) Brunello is currently looking to recruit an assistant resources secretary to deal with adaptation.  There is little question that the adaptation question will soon dominate planning and engineering discussions in beach towns and river towns throughout the state. The threat of rising water levels is probably going to lead to new and very expensive engineering solutions such as levees and sea walls – and, in some cases, calls to move buildings, people, and communities from harm's way.  Adaptation was readily on display at the Haagen-Smit symposium, an invitation-only event named for the first CARB chair, Dr. A.J. Haagen-Smit, who diagnosed the chemical processes leading to smog. The event was held at the Seascape Resort, located up on the cliffs of Aptos. But down on the beach, it was only a short walk to the Rio del Mar seawall – a massive $5 million structure that protects 20 homes depicted in the Google Earth image accompanying this blog. (You can see photos of the seawall on the website of the engineer who designed it.) As an elected official in a beach town, I can tell you that adaptation is not really on anybody's radar screen right now. But it will soon be. "We're not going to be able to save every last square inch," said Michael Hanemann , a professor of agricultural economics at UC Berkeley, during the Boalt Hall event. Adaptation will require both infrastructure and moving people, he said, "and that's going to require consensus." Given the "loosy-goosey structure" of California land use regulation, he predicted, it will not be easy to reach the consensus needed "to literally reshape land use patterns." -- Bill Fulton

The earth's climate is changing more rapidly than we had thought possible only a few years ago, and we had better both prepare for that change and do what we can to stem it. That was one of the principal points last week at a journalists forum on climate change and cities sponsored by the Lincoln Institute of Land Policy , the Nieman Foundation for Journalism at Harvard , and the Harvard Graduate School of Design. The intensive two-day program in Cambridge, Massachusetts, brought together about three dozen journalists, plus elected officials and experts in land use, transportation, geology, conservation, water and public policy. I intend to post a number of blog entries based on research and ideas presented at the forum, but today I'll start with an overview of general impressions. • First, the science. Daniel Schrag , a professor of earth and planetary science at Harvard, said that we still do not know what the effects increased carbon dioxide in the atmosphere will be. But, he emphasized, "The uncertainty is all in the wrong direction." Scientists, Schrag said, have been making conservative estimates about global climate change for decades and all of the estimates have proven wrong. In fact, the situation has grown more dire more quickly than anyone predicted. This was the part of Schrag's presentation that stuck in the forefront of my mind: Carbon dioxide is present in the atmosphere at about 380 parts per million (ppm) today, a sudden rise from 310 ppm. The carbon dioxide level will hit 500 ppm within a few decades, and could reach 1,000 ppm this century. The last time atmospheric carbon dioxide was present at 500 ppm to 2,000 ppm was during the Eocene era, 55 million to 36 million years ago. At that time, sea level was 100 meters (330 feet) higher than it is now. Are atmospheric carbon dioxide and sea level related? Yes. • A number of speakers emphasized the need to both mitigate the problem, and adapt to the likely conditions. It's not an either/or question. Mitigation means reducing energy usage, developing noncarbon sources of energy, and somehow capturing and sequestering carbon emissions. Adaptation means creating ways for people to live less energy-dependent lifestyles — in other words, transit instead of single-occupancy cars, decreased heating and cooling through better building design and construction, and drought-tolerant landscaping. Some adaptations are also mitigations. • What many planners and advocates call "smart growth," or simply good planning, has positive consequences for climate change. Think density, mixed-uses, transit, walkability, stormwater control. In other words, everything that California's post-war suburban model lacks. • What level of risk are we willing to tolerate? Mortgage lenders require homeowners to buy fire insurance, even though the risk of catastrophic fire is quite small, even in fire-prone areas. We spend billions of dollars to protect against a flood that has a 1-in-100 or even 1-in-500 chance of happening. Yet the risk of climate change influencing cataclysmic events — enormous floods, fires, hurricanes and droughts — appears to be more on the order of 1 in 20, or even 1 in 5. Shouldn't this drive public and private spending decisions? • A surprising number of speakers at the forum knew exactly how many days remain in the Bush administration. There's a feeling that the U.S. could not possibly have had two oil men in charge of the White House at a worse time. No one believes the next president, Republican or Democratic, will ignore the issues. • There's this place out there called "the rest of the world." Most Americans are pretty bad about considering this place, except maybe as a vacation destination or as the place where their job went. Yet three-fourths of greenhouse gases are generated in the rest of the world, and developing countries will soon produce more than half. Billions of people want the mobility, convenience and gadgetry that most Americans take for granted. This makes for an extremely sensitive situation, especially when, as one South African reporter pointed out, the rest of the world sees the U.S. as a climate change pariah that's unwilling to be accountable. • Most journalists are missing the big picture. What came through during forum discussions was that many journalists are skeptical of the problem, unsure of the scientists, and doubtful about the solutions offered so far. As one television reporter said, the end of the world has been predicted before but we're all still here. Frankly, I was amazed at level of skepticism, especially considering that these were elite journalists with expertise in the environment and land use. Maybe that's why I found Ronald Sims, the elected executive of King County, Washington, to be so compelling. Sims is a leading voice for climate change adaptation . He pointed out that daily journalists often underreport historic trends and events. Before the attack on Pearl Harbor, newspapers in the U.S. contained modest coverage of the war in Europe and virtually nothing about Japan while they devoted their news columns to trivial local matters. Lincoln's Gettysburg Address was a turning point in our country's history, yet it received almost no coverage at the time. What people are doing — or not doing — to ensure the planet remains habitable 100 years from now is the biggest story ever. — Paul Shigley

Professional and trade conventions actually are new urbanist events. People arrive from out of town, often sans car, and spend several days walking around the convention site and the host city while taking care of business and enjoying themselves. So when we at CP&DR started talking about the best convention cities in California, we ended up talking about some of California's best urban areas. It turns out that a good convention city has all the same attributes as a good urban place. A good convention city has a wide variety of restaurants, coffee houses and watering holes, decent entertainment options, parks or multi-use paths for early-morning or late-afternoon exercise, and maybe some specialty shopping — all within close vicinity of the convention site. Remember, you're at a conference. Considering all the time spent sitting around listening to presentations, and all the drinking and munching you'll do at receptions, you NEED to walk around. Of course, a convention city also should have good hotels, comfortable meeting facilities, wireless access everywhere, a decent airport, and some public transit. Resorts are a second option for a convention. The resort convention often encourages even more walking than the downtown convention, but in a different setting. It's more like walking in a shopping mall or hospital or, if you're lucky, a college campus. While there, you think about how long it will take you to walk somewhere — not the place that you're in. We love cities, so it's not surprising that we favor the downtown convention format. We also should note that we who live and work in California are darned lucky to have so many great meeting places. Many states have only a handful of locations that could handle, say, 500 to 1,000 people for three days. California has dozens of such places, which makes it difficult to choose the best. But we did. The best cities in California for a convention: 1. Monterey. Is there anybody who doesn't want to spend a few days in Monterey on the company's dime? Monterey Conference Center isn't built for those 20,000-person mega-events, but it's an ideal size for most conventions, and it's perfectly located between downtown and Cannery Row. Top-notch hotels, restaurants and comfortable lounges are everywhere. The fabulous Monterey Bay Aquarium and Fisherman's Wharf are within comfortable walking distance along a bayfront multi-use trail. Downtown can feel a touch upscale touristy, but it's easy enough to find eateries and shops catering to modest budgets. If you're able to sneak off for the afternoon, the Monterey Peninsula offers a world-class selection of public golf courses. 2. San Diego. San Diego is sort of like a much bigger version of Monterey, and with more reliably good weather. This convention center can handle the mega-event, but there are hotels with fine meeting facilities for smaller gatherings. The downtown San Diego walking environment is extraordinary. The thriving restaurants and nightclubs of the Gaslamp District are only a few blocks away from the convention center, as is the San Diego Padres' baseball stadium, and you can always stroll along the waterfront. The San Diego Trolley makes excursions to other parts of town easy. If the family comes along, they may reach the famous San Diego Zoo and other attractions of Balboa Park with a short cab ride. 3. Palm Springs. What's better than finally escaping from 8 hours of brain-numbing PowerPoint presentations in an air conditioned hall? Walking out the sliding glass doors into a pleasantly warm evening and marveling at the San Jacinto Peak escarpment towering over town. Palm Springs' convention hotels are conveniently located in an old-fashioned, low-rise downtown that has a weird, yet enjoyable, mix of businesses. The place manages to be both kitschy and ultra-modern at the same time. Plus, the Spa Resort Casino offers a touch of Vegas right in the middle of everything. The second tier: San Francisco. The City would rate higher if Moscone Center were in a better location. Unfortunately, the SoMa neighborhood right around the big convention house is pretty gritty. Union Square and the theater district are nearby, but other great attractions — such as the most vibrant Chinatown in the U.S., the amazing dining in North Beach and the dazzling waterfront along the Embarcadero — require a short cab ride. Public transit can be a little confusing to visitors. Still, if you don't enjoy a convention in San Francisco, then you don't enjoy cities. Los Angeles. Here, the location problem is even worse. Unlike San Francisco, where there are plenty of good hotels close to the convention center, in L.A. most big hotels are a mile or more from the massive convention center. Who wants to take a shuttle from their hotel to the convention? That said, there are finally some new hotels and restaurants within striking distance of the convention center. If you're lucky enough to attend a convention at one of the established downtown hotels, you'll be close to great museums and entertainment venues around the Civic Center. And, believe it or not, public transit is pretty convenient if you want to hit Olvera Street, or even Hollywood or Pasadena. San Jose. This may be the only true surprise on our list. There are good hotels fairly near the convention center and the redeveloped downtown is enjoyable if still a work-in-progress. The San Jose State University campus brings variety and vitality to area. Light-rail and a free shuttle make getting around easy, but most things are within a 15-minute walk. Very popular, but … Anaheim. OK, if you're bringing the kids, then Anaheim might be convention nirvana. But if you're looking for an urban experience, nearby Long Beach or even Santa Ana would be a better bet. Disneyland's massive surface parking lots prevent good urbanism. The Anaheim Convention Center is disconnected from everything. If you want to eat or drink somewhere other than your hotel or Disneyland, your choice is to find a ride or walk on narrow sidewalks adjacent to high-speed boulevards to, well, a different hotel or chain restaurant. That said, there has been a significant hotel upgrade during recent years, and Downtown Disney is OK for what it is. Check back in 20 years. Things might be great by then. For a change of pace … Yosemite Valley. The facilities are spread out, yet everything you could want is here — in one of the world's most spectacular settings. You may take a contemplative walk from Curry Village to Yosemite Lodge to the Ahwahnee Hotel, or you may ride the free shuttle. The boss isn't going to spring for a room in the Ahwahnee, but you may still stop in for a drink by the fireplace. And what could be better than waking up in a tent cabin at Curry Village, grabbing a steaming cup of coffee on the patio, and then deciding whether the day might be better spent on the trail to Upper Yosemite Falls? — The CP&DR Staff

The housing foreclosure crisis has slammed the Central Valley as hard as any region in the country. Stockton, Sacramento, Modesto, Merced and Bakersfield are typically listed the top 10 to 15 markets with the most foreclosures per capita. In some cities, 5% to 7% of homeowners are delinquent on their mortgage payments. And whole neighborhoods, such as portions of Natomas in Sacramento, sometimes seem to have been completely emptied. Why is the Central Valley suffering so badly? I put that question to Carol Whiteside recently while reporting for a story scheduled to appear in the June edition of Planning magazine. Carol founded the Great Valley Center. from which she recently "retired." Before that, she was mayor of Modesto and a member of Gov. Pete Wilson's cabinet. If anyone knows the Central Valley, it's Carol. "These markets were very subject to flippers. People were coming in from the Bay Area and other places because prices were rising so fast," Carol said. Investors put down as little cash as possible on a house, arranged some sort of exotic financing, and then assumed they could sell for a profit within 12 months, Carol observed. The scheme worked for a while. But when prices started flattening out two years ago, and the fancy loans' interest rates reset or balloon payments came due, the game was over. "The other part of it is that this is an area without a lot of wealth and high incomes," she said. Many people who bought homes in the Valley commute to the Bay Area or, from Bakersfield, to Los Angeles. These folks bought houses in the Valley on the "drive until you qualify" theory. Such families live on a tight margin, and the slightest economic blip could make their financial situation untenable, especially if they had refinanced or taken out a second mortgage on the assumption that property values would continue rising. I guess that none of this should come as a surprise. Two years ago, the Congressional Research Service reported that the San Joaquin Valley is the poorest region of the country — poorer than even Appalachia . Economic development efforts have been stymied by the Valley's poorly prepared workforce and a less-than-ideal quality of life in many places. But in recent years, public agencies, businesses and property owners have invested heavily in downtown Modesto, making it a true urban delight. (Seriously, if you haven't been there lately, you'd be surprised.) Will efforts such as downtown Modesto revitalization pay off in the long run by attracting entrepreneurs and well-educated workers who could build a stronger, more durable local economy? Carol Whiteside would like to think so. However, she warned, today's society is focused on the quick buck, not the long-term. "I hope we learn our lesson, and be smarter and more cautious," Carol said, pointing to the high-tech and real estate bubbles that have burst during the last eight years. "But experience tells me we will forget the lessons." — Paul Shigley

State water quality officials are continuing to press forward with more and more strict regulations for stormwater runoff. In response, planners and developers are worried about the cost of implementation and potentially unintended consequences. The regulations — adopted in some regions and under consideration in others — generally require measures to ensure that runoff from new development is not much greater in volume or worse in quality than runoff from the site prior to development. The idea is to prevent new development from further worsening state water quality problems. But developers complain that their projects are being overburdened, and planners question what the rules' impact could be on infill and redevelopment sites where there is little or no impermeable soil to help capture and infiltrate runoff. Water quality officials are clearly sensitive to the criticism. The process for adopting stormwater regulations for South Orange County and Ventura County has slowed dramatically while officials re-evaluate proposed rules and conduct additional stakeholder meetings. "Stormwater is one of the issues that is going to be driving land use decisions," said Clark Anderson, water and land use specialist for the Local Government Commission. "Site design is going to be driven by how you handle stormwater." The technical details can be overwhelming, though. "There is a tremendous amount of water quality regulation that is going on, and it's very technical and complex," summed up Mary Lynn Coffee, an attorney with Nossaman, Guthner, Knox & Elliott who frequently represents the building industry. With great advances in treating municipal sewage and industrial discharges, stormwater runoff (which is basically water that flows over urban surfaces) has emerged as the biggest threat to water quality. This is especially true for coastal waters along metropolitan areas such as Los Angeles. "Pollutants span the spectrum from litter and debris to pet waste to pesticides and fertilizers washing off landscaped areas to road dust and leaking vehicle fluids," said Judie Panneton, a research analyst and spokeswoman for the State Water Resources Control Board. "New development and redevelopment plays a role in the big picture because stormwater quality controls can be considered at an early stage of the planning process and integrated into the overall design of the project." While the regulations and development techniques vary from region to region and even city to city, the policy generally gets condensed into a two-part equation, explained Lisa Nisenson, a Florida-based consultant who has reviewed and commented on numerous stormwater regulatory schemes in California and elsewhere. In a piece for the Planetizen website , she wrote that the equation is thus: "(1) The postdevelopment hydrology profile equals the predevelopment hydrology profile of a development site, and (2) predevelopment hydrology equals the hydrology of a meadow. That is, any new development or redevelopment project must be designed with the infiltration and runoff characteristics of an open field." That sounds great to many people, Nisenson said, but it's not necessarily the right approach because it does not consider the big picture of land use patterns across a watershed. "A lot of the model projects for capturing runoff have been in the wrong places. You've got to consider where the project is located in addition to how a project deals with its stormwater," Nisenson said. It is often much easier to design "model" stormwater systems in greenfield development sites. But the design often relies on large lots or cluster development with expansive areas dedicated to soaking up runoff. The end result, though, is a big urban footprint — including roads — in a previously undeveloped area. How, she asks rhetorically, is that better for the environment than making more efficient use of already developed areas? This was one of the major concerns with the stormwater regulations proposed for Ventura County by the Los Angeles Regional Water Quality Control Board. The proposed regulations (contained in the MS4 permit for county and its 11 cities) emphasizes "low impact development" or LID. The LID approach is what Nisenson describes as the development-site-as-meadow approach, and it makes infill and redevelopment very difficult (see LID sidebar). In turn, it drives development to greenfield areas. But in Ventura County there is the further complication of voter-approved urban limit lines that make most potential greenfield development sites off-limits. It started to sound like a no-growth scenario. The regional board responded by proposing that cities could develop "redevelopment project area master plans." The plans would contain a strategy for dealing with stormwater in existing urban areas, rather than requiring site-by-site stormwater measures that are difficult in infill or redevelopment situations. Developers might end up paying in-lieu fees for larger stormwater management systems. The regional board would have authority to approve or reject the plans. How practical these plans might be for cities and developers to implement remains unknown, although infill proponents such as Nisenson have expressed support for at least the concepts. In late February, the Los Angeles regional board staff conducted an extensive meeting with stakeholders and consultants on the proposed regulatory package. Stephen Cain, a spokesman for the Los Angeles regional board, hesitated to comment on what he termed "truly a draft document." The regulations are not scheduled to come before the board until July, and there is no guarantee the board will adopt them, said Cain, who declined to provide answers to specific questions. Coffee called the proposed Ventura County MS4 permit "a microcosm of all the most stringent runoff regulations that are out there." The proposed regulations for both Ventura County and South Orange County emphasize low impact development. Low impact development also is an emphasis in San Diego County, where the regional board adopted the first of the major stormwater revisions in January 2007, according to attorney Susan Hori, of Manatt, Phelps & Phillips in Costa Mesa. The San Diego permit requires that LID "best management practices" be implemented for "priority development projects," which include subdivisions of at least 10 units, hillside development of more than 5,000 square feet, industrial development of at least one acre, and anything involving at least 5,000 square feet of paved surfaces. Gary Brown, executive director of Orange County Coastkeeper, contended that the emphasis on LID is appropriate. "It's a repackaging of a lot of concepts to capture and infiltrate water on-site," he said. Brown calls the argument that LID mandates will prevent redevelopment "disingenuous." There are many emerging technologies that could be implemented, such as porous concrete, common driveways and various filters that require little maintenance, he said. "To me, what's important is not to tell a developer what to do, but to set up some goals and objectives for what runs off of a property," Brown said. And therein lies a rub. Most regulations are fairly prescriptive, while both developers and planners would rather been given runoff rate and pollution targets and the freedom to figure out ways to hit the targets. "I think the development industry has gone from a position of ‘No we can't do it, no we can't do it,' to recognize the goal and to say, ‘Here's the technical information we can provide'," said Coffee. The process for adopting heavily prescriptive stormwater regulations has slowed, suggesting that a more cooperative approach might emerge as the regional board consider new stormwater regulations this year. "Blanket regulations tend to come back and bite you," Nisenson warned. "The different performance standards will create an uneven playing field between places that adopt them and places that don't." Last year, state lawmakers approved a measure that requires formation of a stormwater advisory task force to assist the State Water Resources Control Board with "program priorities, funding criteria, project selection, and interagency coordination of state programs that address stormwater management." The legislation (AB 739, Laird) also requires the state board to prepare a "comprehensive guidance document" for measuring municipal stormwater management programs. While much of what AB 739 addresses concerns the performance of storm drainage systems, development standards are at issue. The task force includes environmentalists, government officials and representatives of the Building Industry Association of Southern California and the Western States Petroleum Association. The first meeting is scheduled for this month. Contacts: Mary Lynn Coffee, Nossaman, Guthner, Knox & Elliott, (949) 833-7800. Lisa Nisenson, Nisenson Consulting, (941) 822-0338. Clark Anderson, Local Government Commission, (916) 448-1198. Gary Brown, Orange County Coastkeeper, (714) 850-1965. San Diego Regional Water Quality Control Board stormwater website: www.waterboards.ca.gov/sandiego/programs/sd_stormwater.html Los Angeles Regional Water Quality Control Board stormwater website: www.waterboards.ca.gov/losangeles/water_issues/programs/stormwater/index.shtml Natural Resources Defense Council stormwater strategies: www.nrdc.org/water/pollution/storm/stoinx.asp Do You Know LID When You See It? What is "low impact development"? In some ways, the term has become similar to "smart growth" in that LID can mean whatever someone wants it to mean. In some Eastern states, for example, large-lot greenfield subdivisions on the edge of town qualify as LID, while dense redevelopment projects do not qualify, even though the latter adds virtually no impermeable surfaces to a watershed. The State Water Resources Control Board defines LID this way: "Low Impact Development (LID) is a sustainable practice that benefits water supply and contributes to water quality protection. Unlike traditional stormwater management, which collects and conveys stormwater runoff through storm drains, pipes, or other conveyances to a centralized storm water facility, LID takes a different approach by using site design and storm water management to maintain the site's pre-development runoff rates and volumes. The goal of LID is to mimic a site's predevelopment hydrology by using design techniques that infiltrate, filter, store, evaporate, and detain runoff close to the source of rainfall." Like many definitions of LID, state water board's definition presupposes that the development site was previously undeveloped. The Natural Resources Defense Council (NRDC) has been a leading proponent of LID nationwide and has done extensive research on the most-effective LID practices. The NRDC has this to say about LID: "LID is simple and effective. Instead of large investments in complex and costly engineering strategies for stormwater management, LID strategies integrate green space, native landscaping, natural hydrologic functions, and various other techniques to generate less runoff from developed land. LID is different from conventional engineering. While most engineering plans pipe water to low spots as quickly as possible, LID uses micro-scale techniques to manage precipitation as close to where it hits the ground as possible. This involves strategic placement of linked lot-level controls that are "customized" to address specific pollutant load and stormwater timing, flow rate, and volume issues. "One of the primary goals of LID design is to reduce runoff volume by infiltrating rainfall water to groundwater, evaporating rain water back to the atmosphere after a storm, and finding beneficial uses for water rather than exporting it as a waste product down storm sewers. The result is a landscape functionally equivalent to predevelopment hydrologic conditions, which means less surface runoff and less pollution damage to lakes, streams, and coastal waters," according to the NRDC. The San Diego Regional Water Quality Control Board requires LID for most development projects. The regional board defines LID this way: "A stormwater management and land development strategy that emphasizes conservation and the use of on-site natural features integrated with engineered, small-scale hydrologic controls to more closely reflect pre-development hydrologic functions." The San Diego region considers LID best management practices to include maximizing infiltration, stormwater retention, slowing runoff, minimizing impervious footprints, directing runoff into landscaping, clustering development, and incorporating features such as rooftop gardens and permeable paving. Caltrans Agrees to Clean Up Freeway Runoff When it comes to polluted runoff, roads are king. Roads are covered with petroleum products, metal shavings and trash. In addition, roads are designed, for safety reasons, to disburse water quickly, which ensures the pollutants move quickly to rivers, lakes and the ocean, and which encourages soil erosion. All this explains why the Natural Resources Defense Council and Santa Monica Baykeeper targeted Southern California freeways in litigation originally filed during 1993 in U.S District Court in Los Angeles. The environmental groups and Caltrans finally settled the litigation earlier this year. The settlement requires Caltrans to reduce runoff pollution from its 1,000 miles of freeways in Los Angeles and Ventura counties to 20% less than 1994 levels by 2011. How exactly Caltrans will achieve this reduction is not spelled out in the settlement in Natural Resources Defense Council v. California Dept. of Transportation, Case No. 93-6073. Environmentalists said that the specific numeric targets to which Caltrans agreed are the most important part of the settlement, and could serve as a model for Caltrans elsewhere in the state and for other agencies. Among the measures Caltrans could employ are roadside sand traps, catch basins and porous concrete, all of which would slow runoff and absorb contaminants. Caltrans has resisted implementing such measures previously, but a federal judge in the NRDC litigation ruled that the environmentalists could sue to force Caltrans to implement best management practices for controlling stormwater. The Ninth U.S. Circuit Court of Appeal upheld that ruling. Caltrans has been closed-mouth about how it intends to achieve the specified reduction in pollutants. The NRDC said full implementation of the settlement will prevent 6 million pounds of pollutants, including 24,000 pounds of toxic metals, from flowing into waters that drain into Santa Monica Bay.

Environmentalists, open space advocates, planners, elected officials and residents of several Los Angeles and Orange County communities are gearing up for the next round in the battle over the fate of thousands of acres in the hills along the 57 freeway. The property owner has proposed developing 3,600 housing units and 300,000 square feet of commercial space, but opponents say most or all of the site should remain open as a wildlife corridor linking the Puente Hills Open Space with Chino Hills State Park. Interestingly, the corridor was not included in a large report on "missing linkages" issued in mid-March by the group South Coast Wildlands in conjunction with numerous government agencies (see sidebar). One report author said the corridor is indeed a linkage, but it is not one of the 15 top Southern California priorities. Still, those with concerns about development in the hills are unlikely to be deterred as the City of Diamond Bar moves forward with processing a master plan for Aera Energy's 2,935-acre site. "The project involves grading two-thirds of the entire property," said Bob Henderson, a Whittier city councilman and chairman of the multi-agency Wildlife Corridor Conservation Authority. "When you think about that, it's devastating from a biology point of view." But Diamond Bar City Manager James DeStefano insisted that it is too early in the process for anyone to draw conclusions. "There are a lot of issues out there we are still examining," said DeStefano, who estimated a draft environmental impact report is "months" from completion. Yet the project is hardly new, and neither is development of the land. Shell Oil began punching oil wells into the hills during the 1920s, and the property was both a productive oil field and cattle grazing land for decades. With oil about played out, Aera Energy, a joint venture of Shell Oil and Exxon/Mobile that produces 30% of California's oil and gas, first proposed its development to Los Angeles County. All but about 320 acres of the site lie in unincorporated Los Angeles County; the remainder is in unincorporated Orange County. Los Angeles County planners conducted their first meeting on the project in 2002, said Paul McCarthy, a supervising regional planner for the county. Most of the site is within a "sensitive ecological area" designated by the county general plan, so planners and biologists raised a number of questions. The county's Significant Ecological Technical Advisory Committee eventually asked Aera to redesign the project to lessen the impact on wildlife connectivity. Instead, Aera took its proposal to the City of Diamond Bar, which approved a planning and pre-annexation agreement with Aera in late 2006. In May 2007, the city issued a notice of preparation for a program environmental impact report and conducted a scoping meeting. City officials initially said a draft of the environmental study would be complete before year's end, a timeline that has slipped. "There was a lot back in that day we didn't really know," conceded DeStefano. "We have been going slowly through the project. There has been information that has taken a lot of time to get to us." Aera is working with The Planning Center on the master plan and environmental study, while the city has retained EDAW to review Aera's submittals. DeStefano said the city has no pre-conceived notions. "We are taking a real hard look at the land planning that is being proposed by the developer," he said. "We don't want this to be just another subdivision on a hillside. We want it to be a model." The latest public proposal is for a master plan divided among three jurisdictions. • Diamond Bar: 1,940 acres containing up to 2,800 residential units, at least 100,000 to 200,000 square feet of commercial development, and a 20-acre sports park. Diamond Bar would have to annex all of this territory, nearly all of which is outside its existing sphere of influence. • Los Angeles County: 675 acres containing 275 housing units and a golf course. • Orange County: 321 acres with a maximum of 800 residential units, 100,000 square feet of office or commercial space in mixed-use developments, and a golf course. Environmentalists say the Aera project site is located in a critical wildlife habitat corridor. Map source: Hills For Everyone. At least half of the nearly 3,000-acre site would be designated as open space, although golf courses would be part of the open space. Aera has defended the proposal as providing needed housing in a region that has few large sites available for development, yet compatible with environmental needs. "The project was designed to incorporate a wildlife movement corridor through the property from the earliest stages of planning," according to Aera's project description. "Recognizing that animals can safely cross under Harbor Boulevard and the SR-57 freeway in only one location on each road, the plan's design sets aside about 700 acres (of the project's 1,670 acres of preserved open space) to allow unimpeded passage between these locations that lead to adjacent open space preserves." DeStefano said his city has not had a lot of contact with other cities about the project. Back when Los Angeles County was processing Aera's application, the cities of Whittier, Brea, La Habra and La Habra Heights all adopted resolutions opposing the project. The Roland Heights Community Coordinating Council in unincorporated Los Angeles County is also an opponent. The surrounding jurisdictions are concerned about traffic, loss of scenic views, and impacts on wildlife. They are also concerned about their past investments in open space, as local governments have worked with state agencies to conserve about 40,000 acres stretching from the San Gabriel River to the Cleveland National Forest during the last two decades. The Aera property is located toward the western edge of this open space, between the 4,000-acre Puente Hills Open Space (between Whittier and La Habra Heights) and the 12,400-acre Chino Hills State Park, which connects via open space in Coal Canyon to Cleveland National Forest. The Aera property is crucial for healthy movement by deer, foxes, bobcats, coyotes, opossums and other animals, according to open space advocates. The property contains oak and walnut woodlands, as well as coastal sage scrub habitat important to rare species of birds. Aera has portrayed the property as highly degraded by oil drilling and more than a century of cattle grazing, but open space advocates are not dissuaded. About 900 acres the wildlife authority purchased from Chevron in 1995 was in far worse condition than Aera's property is, but the Chevron property has rebounded quickly, Henderson said. One concern of Henderson's is the amount of grading proposed. The EIR notice of preparation estimated there would be 57 million cubic yards of cut and fill work over two-thirds of the project site. Henderson finds that level of earthmoving unacceptable. Henderson and others, including the influential group Hills for Everyone, would like for Aera to sell the property to a public entity for preservation. Henderson added, though, "I've never been opposed to cutting down the size of the project drastically and making room for the wildlife corridor." Whether that's feasible is unknown. Los Angeles County's McCarthy said that Aera and Diamond Bar "have a real challenge on their hands as to how they mitigate impacts to the biotic habitat that's there." For the most part, environmentalists and surrounding jurisdictions are simply waiting for release of the draft EIR. "Until we see an EIR out of the City of Diamond Bar, we're sort of in a holding pattern," said David Sommers, a spokesman for Los Angeles County Supervisor Don Knabe, who represents the area. "We want to make sure that Diamond Bar is not just picking and choosing the best parts of the site." Possibly complicating the habitat issue is the City of Industry's purchase in 2001 of 2,500 acres in Tonner Canyon, just to the east of the Aera property and adjacent to about 3,000 acres Industry already owned in the hills (see CP&DR Local Watch, December 2001). The wildlife authority and other entities sued over the 2001 acquisition but lost in court. Industry — which is home to 700 residents and nearly 100,000 workers — has talked about building several reservoirs on the site, but no project has emerged. The concern is that large reservoirs could eliminate thousands of acres of habitat and block wildlife movement. Contacts: Jim DeStefano, City of Diamond Bar, (909) 839-7010. Bob Henderson, Wildlife Corridor Conservation Authority, Whittier City Council, (562) 945-8200. Paul McCarthy, Los Angeles County Department of Regional Planning, (213) 974-6461. Aera project website: http://www.aeracommunity.com/ Hillside Open Space Education Coalition: www.hosec.com Hills For Everyone: www.hillsforeveryone.org Report Identifies South State Wildlife Linkages Billed as an "innovating conservation strategy" by environmental groups and public agencies, the "South Coast Missing Linkages Project" advocates conservation of 15 key corridors stretching from the southern Sierra Nevada Mountains to Baja California. The project aims to conserve the existing connections that biologists say are essential. The connections lie between large chunks of national forest, state parks and other public open space. "If even one fails, the biological integrity of the entire region would be compromised," said Kristeen Penrod, conservation director for the group South Coast Wildlands. "If these 15 linkages were conserved, they would form the backbone of the Southern California ecoregion." Others involved in the project include the National Park Service, the U.S. Forest Service, California Department of Parks and Recreation, The Wildlands Conservancy and The Nature Conservancy. "Without linkages between existing parks, national forests and other public lands, many native species could be threatened or disappear entirely," said Ray Sauvajot, chief of planning, science and resource management for the National Park Service in the Santa Monica Mountains. "This is especially true for animals that disperse widely or have small populations, such as mountain lions, badgers, bobcats, desert tortoises and bighorn sheep." The strategy evolved out of a project back in 2000 that identified 232 linkages statewide, including 69 in the south coast "ecoregion." Recognizing that they could not address all of the linkages, the participants decided to prioritize the top 15 Southern California linkages based on their vulnerability to urban development and their "ecological irreplaceability," Penrod explained. The park service and other government agencies provided a great deal of information on species and habitats for the report. The priority linkages are all 1,000 acres or more and feature both high-quality habitat and multiple habitat types, Penrod said. About half are already public lands or are preserved in some fashion. Many of the linkages also are already included in habitat conservation plans or natural communities conservation plans. Purchase, easements, zoning restrictions and mitigation agreements are all potential ways to ensure the corridors' viability, according to Penrod. The report is a useful tool for the park service as it looks to acquire new territory for the Santa Monica Mountains National Recreation Area, and as the agency reviews local general plans in the area, said Sauvajot. Several local agencies, including Ventura, Los Angeles and San Diego counties and the City of Santa Clarita have already shown interest in using the linkages project for long-range planning. The full report and detailed maps are available on the South Coast Wildlands website, www.scwildlands.org

The City of Fresno cut short its inquiry into the historic significance of two apartment buildings, one of which is proposed for demolition, the Fifth District Court of Appeal has ruled. Based on its decision three months earlier not to include the buildings on the local register of historic resources, the council determined the demolition project was categorically exempt from the California Environmental Quality Act. However, the court ruled the Fresno City Council had discretion to determine whether the buildings were historical resources for purposes of CEQA "notwithstanding previous decisions not to list the object or building in the local register." However, the court also ruled that the "fair argument" standard does not "apply to the question of historicity during the preliminary review stage of an environmental review." Thus, a decision not to consider a building as an historic resource would stand if there were substantial evidence supporting the decision — even if preservationists presented contrary evidence supporting a fair argument that the building could be an historic resource. In September 2004, the law firm Perez, Williams & Medina submitted an application to demolish one of two four-unit apartment buildings known locally as the WP Cutting flats — craftsman style structures built in about 1913. The law firm sought to expand its office building and parking lot. In response to the application, Fresno's Historic Preservation Commission nominated the flats for placement on the local register of historic resources. But in February 2005, the Fresno City Council voted 4-3 to deny the listing. The city then filed a notice of exemption from CEQA based on demolition of a residential structure with fewer than six units and infill development. A resident complained about the use of a categorical exemption, and the city treated the complaint letter as a CEQA appeal. In May 2005, the City Council conducted a public hearing and voted 4-1 to confirm the categorical exemption. The group Valley Advocates sued, arguing the city had violated CEQA in numerous ways. Fresno County Superior Court Judge Gary Austin ruled for the city. However, a unanimous three-judge panel of the Fifth District overturned the lower court's ruling and the city's approval of the project. The court explained that there are three types of historical resources under CEQA. Mandatory resources are those listed on, or eligible for, the California Register of Historic Resources. Presumptive resources are those listed on a local register or recognized by local ordinance or resolution. The flats in downtown Fresno are neither mandatory nor presumptive historic resources, the court concluded. The third type is discretionary historic resources, which are those that a lead agency decides are historically significant. "The exact scope of that discretion is not clear," Justice Betty Dawson wrote for the court, which declined to provide a definition. The flats could fall into this category, but the city did not exercise its discretion, the court determined. The court focused on written and oral staff reports that erroneously advised the City Council the earlier decision not to list the flats on the local register answered the question of historic resources for purposes of CEQA. "A listing determination and a CEQA determination are not the same thing," the court ruled. Rather than rely on its earlier listing decision, the city needed to perform a separate analysis, which it did not do, the court determined. Therefore, the city must set aside approval of the project and the findings of categorical exemption, and "conduct a preliminary review that considers the application of the discretionary historical resources category to the flats." That review, however, need not be subject to the fair argument standard that is favorable to preservationists. On this issue, the court examined the legislative history of one section of CEQA, Public Resources Code § 21084.1, regarding historic resources. " he only reasonable interpretation of § 21084.1 is that the fair argument standard does not govern a lead agency's application of the definition of an historical resource. Of course, once the resource has been determined to be an historical resource, then the fair argument standard applies to the question of whether the proposed project ‘may cause a significant adverse change in the significance of an historic resource,' and thereby have a significant effect on the environment," Dawson wrote for the court. The fair argument standard also does not apply to the question of whether the project qualifies for an exception to the CEQA exemptions, the court held. The Case: Valley Advocates v. City of Fresno , No. F050952, 08 C.D.O.S. 2003, 2008 DJDAR 2419. Filed February 15, 2008. Modified March 17, 2008 at 08 C.D.O.S. 3027, 2008 DJDAR 3699. The Lawyers: For Valley Advocates: Richard Harriman, (559) 226-1818. For the city: Kathryn Phelan, city attorney's office, (559) 498-1326. For real party in interest: Robert Gray Williams, Perez, Williams & Medina, (559) 445-0123.

Voters in the City of San Clemente will decide on a building height and view ordinance, thanks to a state appellate court ruling regarding signature gathering for a referendum of the ordinance. The Fourth District Court of Appeal ruled that referendum supporters did not have to abide by a state law requiring petition circulators to be city residents, because the law is unconstitutional. A 1999 state attorney general's opinion, issued after a pivotal U.S. Supreme Court ruling, reached the same conclusion, the court noted. The land use controversy in San Clemente concerns ocean views. In July 2006, the San Clemente City Council approved an ordinance prohibiting second-story additions in the Shorecliffs area. The ordinance came in response to complaints from homeowners who said they were losing their ocean views because of two-story houses. The ordinance limits buildings in the area to 16 feet in height, but permits reduced setbacks and increased lot coverage for affected parcels. With the help of a signature gathering company, a group called San Clemente Residents for Responsible Government circulated a referendum of the ordinance. In August 2006, the group submitted enough signatures to force the referendum onto the ballot. However, an anti-referendum (or pro-height limit) group called Preserve Shorecliff Homeowners sued. The group's primary contention was that referendum supporters (height limit opponents) violated Elections Code § 9209, read together with § 9022, because the paid circulators were not residents of San Clemente. The state law requires circulators of referendum petitions to be residents of the city subject to the referendum. Orange County Superior Court Judge Geoffrey Glass determined that the referendum proponents had violated § 9209 and the related § 9238, subdivision (c). However, he ruled that disqualification of the referendum was not proper given that the city clerk had determined the signatures were genuine. In May 2007, Judge Glass ruled the referendum valid. Preserve Shorecliff Homeowners appealed, arguing that Glass has effectively voided state law. The group argued that the constitutionality of the statutes was not at issue, so the court should simply determine whether the referendum proponents complied. But the court said the constitutionality of the law was crucial, as " ppellate courts are not in the business of directing trial courts to violate the constitution." The key case in this area is Buckley v. American Constitutional Law Foundation , (1999) 525 U.S. 182. In Buckley, the U.S. Supreme Court ruled that the State of Colorado could not limit initiative and referendum petition circulators to registered voters. The court said there was no compelling reason to prevent residents who are not registered to vote from circulating petitions. Shortly after Buckley, the California attorney general's office issued its opinion concluding that § 9209's requirement that petition circulators be residents of the city subject to the referendum or initiative was unconstitutional. The requirement in § 9238, subdivision (c) is the same. The Fourth District reasoned that if Colorado's law reducing the pool of potential circulators by 18% (the difference between the number of residents eligible to vote and the number of registered voters) was unconstitutional, then surely a statute limiting the pool of circulators to residents of a particular city was not permissible. "In San Clemente, the effect of § 9238, subdivision (c) is to reduce the pool of potential circulators (from the pool of state residents eligible to vote) by more than 99%," Presiding Justice David Sills wrote for the Fourth District, Division Three, panel. This would be a severe burden on First Amendment rights, the court ruled. Referendum opponents pointed to Browne v. Russell , (1994) 27 Cal.App.4th 1116, in which a California appellate court upheld the City of Los Angeles's residency requirement for petition circulators. But the Fourth District declined to follow Browne . "At the most basic level, Browne decides a question of federal law in a manner that cannot be reconciled with the authoritative federal decisions in the area," Sills wrote. The San Clemente circulators actually had gone around the residency requirement by having petition signers also witness their own signatures as circulators. That may or may not have been a defect — city and county elections officials declined to take a position on the validity of that practice — but the fact remained that the petition contained the required number of valid signatures, Sills noted in refusing to invalidate the referendum. The referendum is now set for a June 3 special election. The Case: Preserve Shorecliff Homeowners v. City of San Clemente , No. G038649, 08 C.D.O.S. 806, 2008 DJDAR 697. Filed January 16, 2008. The Lawyers; For Preserve Shorecliff Homeowners: James Sutton, (415) 732-7700. For San Clemente Citizens for Responsible Government: Frederic Woocher, Strumwasser & Woocher, (310) 576-1233. For the city: Jeffrey Oderman, Rutan & Tucker, (714) 641-5100. For the Orange County registrar of voters: Wendy Phillips, county counsel's office, (714) 834-3300.