The Ninth U.S. Circuit Court of Appeals has given new life to a lawsuit alleging that the City of Modesto and Stanislaus County discriminated against four predominately Latino communities. In overturning a two-year-old ruling by a federal District Court judge, the Ninth Circuit said there is sufficient evidence for the lower court to consider whether the city's and county's annexation policies and provision of emergency services violate residents' constitutional and statutory rights. The appellate panel did, however, uphold rulings that excluded sewer service and other infrastructure from the suit's discriminatory claims. The decision appears to mean that cities and counties that have communities with substandard infrastructure and poor public services – as well as local agency formation commissions (LAFCOs) that help make annexation decisions – need to consider social justice issues when drawing boundary lines. The ruling also has the potential to buttress two bills in the Legislature that would add social justice concerns to annexation policies and general plans. Stanislaus County and Modesto maintain they have done nothing wrong. Terrence Cassidy, an attorney for the county, told the Los Angeles Daily Journal , "When the county gets the opportunity to present all the evidence, it will establish it did not discriminate in any … fashion." Two Latino community groups and 12 residents sued Modesto, the county and the sheriff in 2004. They amended their complaints in 2005. Here's the background. The plaintiffs live in and represent the Bret Harte, Hatch-Midway, Robertson Road and Rouse-Colorado neighborhoods, which are unincorporated islands surrounded, or nearly surrounded, by incorporated Modesto territory. All four neighborhoods were developed during the 1940s and 1950s. Hatch-Midway and Rouse-Colorado lack sewers, while a sewer system has been approved for Robertson Road. All four lack sidewalks, curbs, gutters, storm drains and street lights. Since 2000, Latinos have been in the majority in all four neighborhoods. In 1983, Modesto and Stanislaus County signed a master tax sharing agreement (MTSA) that ensures the county would continue to receive two-thirds of the property-tax revenues in an area annexed by the city. The agreement specifically excluded Bret Harte and Robertson Road. In 1988, residents of Bret Harte applied for annexation to Modesto, but the bid failed because the city and county could not agree on how to divide up the area's property tax revenues. A 1996 amendment excluded Hatch-Midway from the revenue sharing agreement. A 2004 amendment added a portion of Bret Harte to the agreement. A need for sewer service often drives annexation bids. Thirty years ago, Modesto voters approved a ballot measure prohibiting sewer extensions without an advisory vote. In 1995, they passed Measure M, which requires an advisory election before any sewer improvements could be made in unincorporated areas. (There were five advisory votes in the November 3 election.) The Modesto City Council approved procedures for implementing Measure M in 1998. They prohibit Measure M votes for extending sewer services to "substantial" islands – a term left undefined – unless the county first agrees to install other infrastructure. The plaintiffs contended that the city's policies and the revenue sharing agreement are discriminatory and violate the Fourteenth Amendment's equal protection clause, the Fair Housing Act and state laws. District Court Judge Lawrence O'Neill issued summary judgment for the city, citing insufficient evidence from the plaintiffs. The Ninth Circuit, however, found substantial evidence to support some of the discrimination claims. For example, the plaintiffs contended that the islands excluded from the revenue sharing agreement – an essential tool for annexation – were 71% Latino, according to the 2000 Census, while those included in the tax pact were 48% Latino. In addition, they pointed out that Modesto refused to include Bret Harte when it annexed neighboring Fairview Village in 1996, even though LAFCO recommended that all the territory become part of the city. The court held that the plaintiffs should be allowed to present this information to the District Court. " reasonable fact-finder could conclude that exclusion from the MTSA is indeed a barrier to annexation that neighborhoods covered by the MTSA do not face," wrote Judge Louis Pollak, a District Court judge from Philadelphia sitting by assignment to the Ninth Circuit. "Given the context of the 2004 reenactment, the trend of neighborhoods to become more heavily Latino over time, the 1988 unsuccessful Bret Hart application, and the example of the Fairview Village annexation, we conclude that plaintiffs have presented evidence of discriminatory impact." Arguments over the provision of law enforcement and emergency services to the four neighborhoods centered on response times. Over a two-and-a-half year period that ended in August 2004, the average response time of the sheriff's office to the plaintiffs' neighborhoods was 13.4 minutes, compared to 12.5 minutes for majority white communities. O'Neill had ruled that the time difference was not "meaningful." Writing for the Ninth Circuit, Pollak said the court "cannot agree that, as a matter of law, a difference of one minute can be characterized as not making a ‘meaningful difference' when one is waiting at one's home for law enforcement or emergency personnel to arrive, particularly in the absence of any explanation for why the time difference exists." He went on to write, "A fact-finder should decide if the difference is material and if so if the difference is explainable on grounds other than the ethnicity of the population of those neighborhoods." The plaintiffs did not fare as well with respect to their claims about sewer service, Measure M and new infrastructure. The appellate court noted that Modesto had extended sewer service to only three of 26 unincorporated islands, and all three have large Latino majorities. As for such infrastructure as storm drains and sidewalks, the court found that the county has many needs and limited funding, and there was no evidence of discriminatory intent in the county's allocation of resources. Victor Rubin, vice president of research for the social justice organization Policy Link, said the case demonstrates the need for government agencies to address fiscal issues that block annexation drives. It's not acceptable for government agencies to give up because of difficult fiscal negotiations, he said. "It's another example of how we end up with an absence of infrastructure, and infrastructure planning, because of the fiscalization of land use," Rubin said. The Modesto neighborhoods involved in the lawsuit are not unusual in the Central Valley, he added. The two measures pending in the Legislature are AB 853 (Arambula) and SB 194 (Florez). The former would require counties to initiate annexation proceedings for islands that qualify as "disadvantaged communities" if 25% of landowners, or registered voters, sign a petition supporting the annexation. The latter measure would require cities and counties to identify disadvantaged islands and fringe communities in their general plans and analyze the feasibility of annexing the communities. Lawmakers could consider both bills after the first of the year. Cities and counties are skeptical, while Policy Link, California Rural Legal Assistance and other social justice advocates support the measures. In an analysis, Colantuono & Levin attorney Yvette Abich Garcia wrote, "Whether or not these bills move forward, the Modesto suit suggests LAFCOs, cities and counties with underserved county areas should consider whether and how to address the social concerns expressed by this litigation and legislation." The Case: The Committee Concerning Community Improvement v. City of Modesto , No. 07-16715, 2009 DJDAR 14628. Filed October 8, 2009. The Lawyers: For the committee: Brian Brosnahan, Kasowitz, Benson, Torres & Friedman, (415) 421-6140. For the city: John McDermott, Howrey LLP, (213) 892-1800. For Stanislaus County: Terrence Cassidy, Porter Scott, (916) 929-1481.

A city may consider aesthetics in regulating the construction of telecommunications antennas, the Ninth U.S. Circuit Court of Appeals has ruled. The ruling is the latest in a series of court decisions upholding the authority of local government to decide where wireless antennas are located. And it is one of the most explicit: "California law does not prohibit local governments from taking into account aesthetic considerations in deciding whether to permit the development of WCFs within their jurisdiction," said the court. In 2002 and 2003, Sprint PCS applied to the City of Palos Verdes Estates for permits to construct 10 cell phone towers in public rights-of-way. The city approved eight. It rejected one proposed antenna because it would disrupt the residential ambiance and another because it would detract from the natural beauty of a city entrance. Sprint sued, arguing that the denials violated the federal Telecommunications Act of 1996. District Court Judge Alicemarie Stotler ruled in favor of Sprint, but a unanimous three-judge panel of the Ninth Circuit overturned the decision. As the Ninth Circuit explained, the Telecommunications Act attempts both to "encourage the rapid deployment of new telecommunications technologies," and "to preserve the authority of state and local governments over zoning and land use matters." Under the act, a local government may deny a request to construct a wireless antenna tower if authorized by local law and supported by a reasonable amount of evidence. Stotler had concluded that the city's consideration of aesthetics was not permitted under the state Public Utilities Code (PUC). The Ninth Circuit said that the statutes in question – Public Utilities Code §§ 7901 and 7901.1 – do not eliminate local governments' constitutional authority to regulate local aesthetics. "Thus," Judge Kim McLane Wardlaw wrote for the appellate court, "the threshold issue is not, as Sprint argues and the District Court apparently believed, whether the PUC authorizes the city to consider aesthetics in deciding to grant a WCF permit application, but is instead whether the PUC divests the city of its constitutional power to do so. Therefore, the question actually before us is whether the city's consideration of aesthetics is ‘in conflict with general laws.'" After framing the issue in a way favorable to the city, the court examined the statutes. Under § 7901, a company may construct facilities "in such a manner and at such points as not to incommode the public use of the road or highway." The court cited dictionary definitions of "incommode" that include "trouble, annoy, molest, embarrass, inconvenience." "The experience of traveling along a picturesque street," Wardlaw wrote, "is different from the experience of traveling through the shadows of a WCF, and we see nothing exceptional in the city's determination that the former is less discomforting, less troubling, less annoying and less distressing than the latter." Wardlaw continued, " he ‘public use' of the rights-of-way is not limited to travel. It is a widely accepted principle of urban planning that streets may be employed to serve important social, expressive and aesthetic functions. … These urban planning principles are applied in the city, where the public rights-of-way are the visual fabric from which neighborhoods are made." As for Section 7901.1, the court noted that the statute permits municipalities to control the "time, place and manner" in which rights-of-way are accessed. Aesthetic regulations are time, place and manner regulations. So the question turned on whether the city had relevant evidence to support its decisions. The court said the city did, citing maps, mock-ups, a staff report on aesthetic values, public comments and a presentation from Sprint. Sprint pointed to provisions of the Telecommunications Act that prohibit regulation from creating a "significant gap" in wireless service. The District Court judge had found such a significant gap. But the Ninth Circuit noted that Sprint has 4,000 customers in Palos Verdes Estates and that a city "drive test" determined Sprint's network was functional. In rejecting the argument that the federal supremacy clause preempted the city's ordinance, the court alluded to the decision in Sprint Telephony PCS, L.P. v. County of San Diego , 543 F 3d 571 (9th Circuit 2008). In that case, the court held that a company must prove that local regulation actually prevents telecommunications services (see CP&DR Legal Digest , October 2008 ). The Case: Sprint PCS Assets LLC v. City of Palos Verdes Estates , No. 05-56106, 2009 DJDAR 14841. Filed October 14, 2009. The Lawyers: For Sprint: John J. Flynn III, Nossaman, (949) 833-7800. For the city: Scott Grossberg, Cihigoyenetche, Grossberg & Clouse, (909) 483-1850.

The Ninth U.S. Circuit Court of Appeals continues to crack open the door to property owners seeking compensation for what they claim is a government taking. In its most recent decision, the court ruled that the owner of a rent-controlled mobile home park in Capitola should have its day in federal District Court. This despite the fact that the U.S. District Court and two state courts ruled that a state court decision against the property owner should have settled the matter. The Ninth Circuit did not rule on the merits of the claims, which allege that the city's rent-control ordinance constitutes an illegal taking of private property. The appellate panel instead decided that the District Court must weigh the claims rather than rely on state court rulings against the mobile home park owner. The ruling follows a Ninth Circuit panel decision in September that held the City of Goleta's mobile home rent-control ordinance was a taking on its face and the mobile home park owner is due compensation (see CP&DR Legal Digest , October 15, 2009 ). The same judge who wrote the majority opinion in the Goleta case, Jay Bybee – best known as the author of a memorandum while he was a member of the Bush administration that narrowly construed the definition of "torture" – also penned the decision in the Capitola case. The Capitola litigation is eight years old. In 2000, the owners of the 108-space Castle Mobile Estates, who had been pressuring tenants either to sign long-term leases that would override rent-control protections or buy the park outright for upward of $10 million, requested that the city approve a monthly rental increase of 150% – or $300 – for each space. The city's 1979 rent-control ordinance limits increases to a percentage of the increase in the consumer price index and the park owners' capital and operating expenses. The city ultimately approved an increase of about $15 a month. Los Altos El Granada Investors, as the park owners are called, filed multiple suits in federal court over the course of three years, as well as a suit in Santa Cruz County Superior Court. Essentially, all the suits contended that Capitola's ordinance on its face and in its application to Castle Mobile Estates constituted an illegal taking, for which the property owners demanded payment. The owners took the state court route largely because the U.S. Supreme Court's Williamson County decision requires property owners to seek compensation for alleged takings in state court before moving to the federal level. But they also asserted an " England reservation" – a legal construct in which a plaintiff reserves the right to try questions of federal law in federal court. Specifically, Los Altos El Granada wanted to present its takings, due process and equal protection claims under the Fifth and Fourteenth Amendments to a federal court. The park owners lost twice in Superior Court before winning a minor reversal in state appellate court (see CP&DR Legal Digest , July 2006 ). The state court litigation concluded in December 2006 with a Superior Court rejecting all owner's claims. Importantly for the federal case at hand, both the Superior Court and the state's Sixth District Court of Appeal denied the property owners' England reservation. While the state court litigation was pending, federal District Court Judge Jeremy Fogel took no action on the federal lawsuit. When the state litigation played out, Fogel reviewed the case and concluded that the state court's "adjudication of California takings claims is equivalent to the adjudication of their federal counterparts, and the doctrine of issue preclusion also bars the re-litigation of those claims as federal claims." As such, Fogel declined to consider the merits of the claims. He also gave "preclusive" effect to the Superior Court's rejection of the England reservation because the property owners did not appeal. Los Altos El Grenada Investors then appealed to the Ninth Circuit, which overturned Fogel. The Ninth Circuit explained that the point of the England reservation is to ensure that plaintiffs who are compelled by law to litigate in state court should still get a hearing in federal court. Besides, it is not up to state courts to decide who may exercise an England reservation, the Ninth Circuit said. " he Superior Court's action in striking the explicit England reservation by itself preserves to us the jurisdiction to hear Los Altos's federal claims," Bybee added. "The state courts were aware from the outset that Los Altos intended to return to federal court," Bybee wrote. The notice provided by the property owner, whether provided in a complaint or given orally to the court, "is all England requires." The court sent the case back to District Court to reconsider its ruling that the state court decisions precluded the federal court from considering the merits of the property owners' arguments. The Case: Los Altos El Granada Investors v. City of Capitola , No. 07-16888, 2009 DJDAR 14584. Filed October 7, 2009. The Lawyers: For Los Altos: Mark Alpert, Hart, King & Coldren, (714) 432-8700. For the city: Henry Heater, Endeman, Lincoln, Turek & Heater, (619) 544-0123.

The Natural Resources Agency has altered proposed amendments to the California Environmental Quality Act Guidelines. The changes appear to shift the focus of environmental analysis away from a project's effects on automobile traffic and toward impact on the overall transportation system. The amendments are scheduled to take effect January 1, 2010. Under legislation approved in 2007, the amendments are supposed to address greenhouse gas emissions (see CP&DR Environment Watch , May 2009 ). However, experts who commented on the draft amendments said that the continued reliance on traffic level of service (LOS) standards would only maintain an emphasis on automobile travel, even though less automobile travel is necessary to reduce greenhouse gas emissions. This is because a high LOS requires roads, highways and intersections that can carry automobiles without undue delay. In response, the agency changed Appendix G of the guidelines to give lead agencies more discretion in choosing methodologies to examine the transportation related effects of projects. The notice of proposed changes states, "The proposed revisions would refocus the question from the capacity of the circulation system to the performance of the circulation system as indicated in an applicable plan or ordinance. The proposed revisions also clarify and update language regarding safety considerations and other mass transit and non-motorized transportation issues." In addition, the Natural Resources Agency deleted a question dealing with adequate parking capacity from the Appendix G checklist. Transit-oriented developments often run into CEQA difficulty because they provide a limited amount of parking, which is then considered a significant effect that must be mitigated. The agency made other changes intended to clarify that greenhouse gas emissions are best analyzed as a cumulative impact. The public comment period on the changes ends November 10. The entire CEQA Guidelines package is available at http://ceres.ca.gov/ceqa/guidelines .

The economy in California's Central Valley remains extremely poor, according to a statistical analysis prepared by the Great Valley Center. The region's per-capita income during 2007 was $29,790, or about 70% of the state average of $41,805. If the region were a state, it would rank 48th in per-capita income in the country, according to the center's economic indicators report, which is issued every five years. "The current recession is just exaggerating the problems we already had," said Amy Moffat, the center's director of research and communications. Even when the overall economy is strong, the Central Valley is plagued by high unemployment and poverty. The biggest difference between this year's report and the 2004 version is that housing foreclosures have replaced rising housing costs as a major problem. The steady conversion of prime agricultural land to urban development is also a concern because of its implications for the valley's agriculture industry, said Moffat. The report makes five recommendations for Central Valley leaders: • Improve the quality of the workforce. • Continue to support agriculture as a regional economic base. • Diversify the economy to meet the needs of a growing workforce. • Capitalize on momentum from the federal recovery act. • Understand the needs of rural communities. The report is available on the Great Valley Center website . Sacramento Community Development Director Bill Thomas and Dan Waters, a customer services supervisor under Thomas, have been placed on administrative leave after Waters approved 35 new home permits in an area subject to a federally imposed building moratorium because of flood risks due to substandard levees. Waters, son of and campaign treasurer for Sacramento City Councilman Robbie Waters, allowed K. Hovnanian Homes to switch 35 building permits in the North Natomas area from one set of parcels to different parcels. The switch occurred earlier this year even though the Federal Emergency Management Agency prohibited new building in the area as of December 8, 2008. Without authorization, Waters also allowed K. Hovnanian to defer payment of $61,000 in permit fees for three months. The Sacramento Bee reported that 11 of the houses are complete and four are occupied. The developer has denied any wrongdoing. In late October, the City Council directed the city manager's office to investigate the Community Development Department. As promised, the California Redevelopment Association (CRA) has sued the state in Sacramento County Superior Court to halt the shift of $2.05 billion from local redevelopment agencies to school districts and state agencies. The CRA contends that the transfer of property tax increment during the 2009-10 and 2010-11 fiscal years violates the state constitution. The group successfully used the same argument to block the shift of $350 million in tax increment to schools in the 2008-09 fiscal year (see CP&DR Redevelopment Watch , June 2009 ). Redevelopment agencies in Union City and Fountain Valley joined the CRA suit. Mark Evanoff, manager of the Union City Redevelopment Agency, said the funds transfer, which would cost his agency $7.7 million, could halt a 100-acre BART station redevelopment project. The city has obligated all its tax increment to the station and others projects (see CP&DR Redevelopment Watch , March 2007 ). According to state law, the $3.3 million transferred from Fountain Valley's agency to the Garden Grove School District could be spent only on the 64 students who live within the agency's redevelopment project area. That amounts to about $52,000 per student. "This is exactly what happens when lawmakers don't think things through," said Raymond Kromer, Fountain Valley community development director. Nine federal agencies have signed a memorandum of understanding (MOU) intended to speed the review of electricity transmission lines on public lands. Among those signing were the Department of the Interior, the Environmental Protection Agency and the Federal Energy Regulatory Commission. Under the agreement, a single federal agency will lead the review of a proposed transmission corridor. In addition, the agencies will assess proposed projects simultaneously rather than consecutively, and there will be clear timelines for agencies to complete their work. The new transmission corridors would carry electricity generated at remote solar, wind and other renewable energy facilities. The proposed routes have frequently become controversial because they pass through sensitive wildlife and plant habitats on public lands. It is unclear whether the MOU would eliminate legal challenges, but it could accelerate the federal permitting process by a year or more, according to federal officials. The MOU is available here .

Maybe California's public process for making land use decisions really is "old and sick," as new urbanism champion Andrés Duany said during a recent presentation in Sacramento. Duany's criticism of the system and his praise of a jury-style process used in Perth, Australia, seems to have struck a chord. The piece I wrote about Duany's presentation drew quite a bit of readership on Planetizen , and I've been receiving emails ever since. One of those emails came from David Prowler, who in the last 30 years has participated in San Francisco's planning process as a planning commissioner, developer, consultant and community organizer. He pointed me toward a piece he wrote in 2007 for the San Francisco Planning and Urban Research Association newsletter with the headline " Form Foils Function." If you've been around the process for a while, you'll smile knowingly as you read Prowler's commentary and recommendations. True, San Francisco's process may be extreme, but plenty of other cities and counties have high levels of dysfunction. Let me clear up one potential misconception before it gets started: No one advocates an authoritarian approach that cuts the public out of the process. To the contrary, there's interest in getting additional people involved, but in a much more educated and productive way. The current process is driven largely by California Environmental Quality Act review. But the average citizen doesn't understand CEQA. Heck, people who have been in the business for 20 years don't understand it. Plus, while the typical CEQA analysis provides an excellent examination of the tree right in front of us, it misses the forest behind the tree (despite the cumulative impacts analysis). I'm not advocating scrapping CEQA, but I think we all know the CEQA process often leaves the public lost in the woods. So why do we let CEQA drive our public review process? Have thoughts about all of this? Logon to this website and post your comments. – Paul Shigley

Slow-growth advocates won major victories in November 3 local elections when voters rejected a housing project in Davis and a shopping center in Mendocino County, as well as sewer extensions in Modesto. But slow-growth forces suffered some unexpected losses. In Santa Barbara and Ventura, two cities with a history of voter-controlled development, initiatives that would have imposed strict height limits on new buildings were rejected. In the Bay Area, Walnut Creek voters approved amended parking standards necessary for the construction of a Neiman Marcus store downtown. As usual, the election results was a mixed bag. The slow growth side won eight of 12 easily classified contests, but that total is misleading because Modesto voters rejected five proposals to extend sewer service into potential new growth areas. All in all, voters decided 22 local ballot measures with land use implications, including the proposed incorporation of Carmel Valley and three advisory measures on incorporation and annexation in the Santa Clarita Valley. Voters in both locations said they do not want to create a new city No Growth in Davis The Davis election was the result of a 2000 initiative, Measure J, that prohibits the rezoning of agricultural land without voter approval. Parlin Development Company of Rancho Cordova proposed rezoning a 25.8-acre horse ranch to permit development of 191 housing units – 73 single-family houses, 78 condominiums and a 40-unit apartment complex containing 38 affordable units. Parlin's Wildhorse Ranch included numerous green building and solar power features, and it even won the endorsement of local Sierra Club organizers. Pam Nieberg, a leader of the Sierra Club Mother Lode Chapter's Yolano Group, said she supported the project because of its energy- and water-saving features, compact design and location. The site is bordered on three sides by the Wildhorse housing subdivision and on the fourth side by an agricultural buffer. "I've lived here since 1962, and I have fought against some of the bigger projects, like Mace Ranch and Wildhorse," Nieberg said. "We lost those votes. I think now that those projects have built out, the mood has shifted. A lot of people don't want things to change." And they will not change, at least on this 26-acre parcel. Almost three out of four Davis voters rejected the rezoning. Davis City Councilwoman Sue Greenwald, who opposed the project, said people voted down Wildhorse Ranch because there is no need for additional housing in town. The University of California has started construction on a 1,500-unit project for students and UC staff members, while ground has not been broken on other approved projects because of the poor housing market, she said. "Between the city and the adjacent university, we have over 2,000 units approved. This is just the wrong time to bring a development forward," Greenwald said. She also questioned whether the project was as green as advertised and said the location was too far from the center of town for new housing. Davis voters will have the opportunity in June 2010 to renew Measure J, which is scheduled to expire at the end of 2010. So far, only two projects have tested the initiative, Wildhorse Ranch and the 1,800-unit Covell Village, which voters rejected in 2005. Greenwald said Measure J has worked as intended and without the growth control, "we would look like Orange County or the Inland Empire." Although she lost this election, Nieberg said she backs extending Measure J because she does not trust the City Council to make rezoning decisions. Don't Cross Mendocino County The biggest project that voters considered on November 3 was Mendocino Crossings, which was proposed by Ohio-based Developers Diversified Realty (DDR). After getting frustrated with an area plan process for the Ukiah Valley that has started and stopped several times since the mid-1990s – and the refusal of the county to consider the DDR project until the area plan is complete – DDR presented its Mendocino Crossings specific plan directly to voters. The specific plan established a unique zoning district for DDR's property – a 76-acre former door and molding factory just north of the Ukiah city limit – and permitted up to 800,000 square feet of new buildings, including a maximum of 150 residential units. DDR envisioned a large shopping center on the property anchored by the likes of Costco and Target. But the shopping center apparently was not what voters envisioned, as only about 38% backed the initiative. The Ukiah City Council, most county supervisors and many local merchants opposed the project because they said it could harm existing business and to tie up traffic in an area with limited access. Opponents also said that DDR should have gone through the normal planning process and that the site should remain zoned for industrial uses. Brian Sobel, a spokesman for Mendocino Crossings, said the project would have brought jobs and large-format stores to the Ukiah area. "That obviously did not resonate with voters as well as the opponents' message did," Sobel said. "Measure A in the community had a pretty vociferous and hard-working opposition." As for the charge that DDR should have worked within the normal planning process, Sobel, a former Petaluma councilman and planning commissioner, said, "It was a process that had to be gone around because, otherwise, a decision never would have been made." Coastal Height Limits The Santa Barbara initiative, Measure B, would have reduced the maximum height of new buildings in downtown from 60 feet to 45 feet, and to 40 feet in the historic El Pueblo Viejo district. The Ventura proposal, also Measure B, would have limited new building height to 26 feet in nearly all the city, except downtown, for two years while a new committee drafted a viewshed ordinance. In Santa Barbara, an unusual coalition of developers, architects, environmentalists and Democratic Party activists rallied against Measure B. They worried that the height limit would force development to the fringes of town, prevent reconstruction of Cottage Hospital if it were damaged by an earthquake or other disaster, and generally obstruct smart growth principles. Many of the town's historic structures are higher than 45 feet, they noted. Supporters of the initiative said the limit was needed to prevent the proliferation of buildings 60 feet tall and higher from overwhelming downtown and the historic district. The result of Santa Barbara's first all-mail election was somewhat confusing. Voters narrowly rejected Measure B, but three of the four winning City Council candidates -– planning commissioner Bendy White, Frank Hotchkiss, who campaigned against a general plan update and to reduce the size of the Planning Department, and Michael Self, who for years has fought against bulb-outs at intersections and other traffic calming measures – endorsed the initiative. After the election, Measure B co-author and architect Bill Mahan wrote on the Save El Pueblo Viejo website: "Even though Measure B didn't pass, it is clear that there is much community concern about building heights. They can be addressed by ordinance." By contrast, the vote against the Ventura height limit was a three-to-one blowout. A group called Ventura Citizens' Organization for Responsible Development pushed the initiative to prevent what it called overdevelopment and to protect ocean views. Opponents said it was unnecessary, a threat to redevelopment of Ventura's long-struggling midtown area and poorly drafted. Those arguments got traction in an election topped by a heated City Council race and a half-cent sales tax measure that voters defeated. There was no split as in Santa Barbara. One of Measure B's authors, Camille Harris, finished 11th in a 14-person race for four City Council seats. Bonds and Charters The November 3 election had only three school bonds, the fewest since the 55% threshold went into effect in 2000. Voters approved a $59.8 million bond in Marin County's Mill Valley School District and a $9.3 million bond in the Shoreline Unified School District, which covers slices of Marin and Sonoma counties. A $6.7 million bond in Tulare County's Springville Union Elementary School District failed. An $88 million bond to build a police, fire and emergency medical services facility in the City of San Rafael received 61% support, well short of the two-thirds required for approval. However, voters in the Tehachapi Valley Health Care District approved a $50 million bond to help fund construction of a new hospital in Tehachapi. Voters in Palmdale and El Centro approved city charters that officials said would ease, and reduce the cost of, municipal construction projects. The full results: Contra Costa County City of Walnut Creek The long fight over a proposed Neiman Marcus store at Broadway Plaza has apparently ended. Voters approved a general-plan amendment that modified parking and other standards to permit the construction of a 92,000-square-foot two-story project. The $2 million campaign was funded by Broadway Plaza owner Macerich and, on the other side, by Taubman Centers, which owns the rival Sun Valley Mall in neighboring Concord. Measure I: Yes, 71.4% (pro growth) Los Angeles County City of Maywood The proposed site of a new Los Angeles Unified School District high school proved very unpopular with voters. To make room for the school, 112 apartment units, 10 houses, a Veterans of Foreign Wars post and several commercial buildings would have to be demolished. Voters rejected the advisory measure supporting the district's plan to acquire the 9.4-acre site at Slauson and King avenues. Instead, they backed an advisory measure urging the district to "fully and adequately" investigate other sites. Measure MS (LAUSD site): No, 72.0% Measure SC (alternative sites): Yes, 71.0% Santa Clarita Valley Voters sent conflicting messages on three advisory measures on incorporation. Proposals to keep the valley unincorporated and to annex into the City of Santa Clarita both passed. The proposal to form a new city adjacent to Santa Clarita was soundly defeated. The measures were on the ballot in Sunset Pointe, Stevenson Ranch, Southern Oaks, Westridge, Tesoro, Castaic and Val Verde. Measure A (remain unincorporated): Yes, 56.3% Measure B (new city): No, 77.8% Measure C (Santa Clarita annexation): Yes, 52.9% Marin County Town of San Anselmo Voters upheld an ordinance preventing the proliferation of "monster homes" in the "flatlands" by restricting house size. The City Council approved the floor-area ratio ordinance last year. It limits the habitable portion of a house to 45% of the lot size and prohibits homes of more than 5,000 square feet. Measure F: Yes: 53.0% (slow growth) Mendocino County Voters defeated a specific plan prepared by Developers Diversified Realty that would have permitted 800,000 square feet of development, including up to 150 residential units, on a 76-acre industrial site just north of Ukiah. Measure A: No, 62.3% (slow growth) Monterey County City of Carmel-by-the-Sea Voters approved the sale of the Flanders Mansion, a National Register of Historic Places property surrounded by an existing park. The city acquired the property in 1972 but has never figured out what to do with it. Neighbors fought proposed conversion of Flanders Mansion into a park or community center because of traffic and parking concerns. Measure I: Yes, 63.3% Carmel Valley Voters rejected incorporation of the valley as a new city of 39 square miles and 12,000 residents. Located inland from Carmel-By-The-Sea, the valley has been the site of numerous, intense battles over growth. Both sides said they wanted to maintain the valley's semi-rural character. Measure G: No, 52.3% San Francisco Voters underscored their hatred of billboards by rejecting a measure to relax existing restrictions on illuminated billboards and video signs on Market Street between Fifth and Seventh streets. A measure prohibiting advertising on all city-owned street furniture and buildings, except signs and placards already permitted by contract, passed. Proposition D (mid-Market signage): No, 54.1% Proposition E (advertising ban): Yes, 57.5% San Mateo County City of East Palo Alto A Superior Court judge blocked a vote on a measure overhauling the city's ordinance limiting rent increases and restricting evictions. The city's largest landlord, Page Mill Properties, successfully argued the City Council violated the state open meeting law when considering the changes and should have subjected the ordinance amendments to environmental review. Santa Barbara County City of Santa Barbara An initiative to lower the maximum height of new buildings downtown from 60 feet to 45 feet, and to 40 feet in the historic district, failed. Measure B: No, 53.7 (pro growth) Stanislaus County City of Modesto All five advisory measures regarding the extension of sewer service to five unincorporated areas totaling 2,980 acres failed. Most of the land is north of town and largely undeveloped. Measure M from 1995 requires an advisory vote before the city extends sewer services to unincorporated areas. Measure A (1,310-acre Kiernan-Carver Corridor area): No, 60.3% (slow growth) Measure B (230-acre College West area): No, 64.8% (slow growth) Measure C (130-acre Hetch-Hetchy area): No, 61.8% (slow growth) Measure D (480-acre Roselle-Claribel area): No, 64.0% (slow growth) Measure E (830-acre Hetch-Hetchy area): No 69.4% (slow growth) Ventura County City of Ventura In addition to rejecting a height limit, voters rejected Measure C, an anti-Wal-Mart initiative that would have prohibited stores of more than 90,000 square feet from devoting more than 3% of floor space to groceries. Measure B (height limits): No, 74.7% (pro growth) Measure C (anti-big-box): No, 54.7% (pro growth) City of Fillmore A somewhat confusing measure backed by owners of El Dorado Mobile Home Park failed miserably. The initiative would have sharply limited city discretion over the conversion of the park to condominium ownership. The city has refused to approve the proposed conversion, which tenants oppose, until park owners complete a number of upgrades to the park's infrastructure. Measure F: No, 85.9% Yolo County City of Davis Nearly three of four voters rejected a 191-unit housing development proposed for 26 acres of agricultural land. A 2000 initiative prohibits the rezoning of agricultural land in Davis without voter approval. Measure P: No, 74.6% (slow growth)

California's water politics are hopeless. That's the only conclusion I can reach, and it was reaffirmed earlier this week when I attended a Great Valley Center forum on water.   It was not what the people attending the forum said. Great Valley Center President David Hosley said the Legislature's continuing discussion of the issue demonstrated the need for his group's event. Hard to quarrel with that. Tim Quinn, executive director of the Association of California Water Agencies, said he is confident that state lawmakers will pass a package of water bills this fall. "We have some historic legislation on tap," Quinn punned. Again, hard to fault his hope.   No, what confirmed my pessimism was what forum attendees didn't say. Public officials, academics, conservationists and business people talked about water for nearly six hours, but they hardly mentioned the proposed water package in the Legislature. It's not that they don't know or care about it. It's that whatever tinkering lawmakers do to it is highly unlikely to alter the state's water fundamentals.   What would count as fundamental change? A peripheral canal that eliminates the Delta as the central cog in the State Water Project and Central Valley Project. Honest-to-goodness regulation of groundwater extractions. Major state investments in water recycling and efficiency. A legislative and fiscal embrace of conjunctive water management. I'm not arguing for or against any of these changes. I simply say that anything else – even construction of another dam or armoring Delta levees – amounts to minor tinkering.   All of which makes an event like Great Valley Center forum, conducted at the Sierra Nevada Brewery in Chico, even more important, because most of the discussion was highly pragmatic. People talked about practical ways of reducing water consumption, which in Chico starts with metering water usage. Mark Atlas, an attorney for the Tehama Colusa Canal Authority, explained how his agency will continue to provide more than 300,000 acre-feet of water to farmers and comply with Endangered Species Act mandates to protect rare fish. Other forum attendees explained that modified flood management practices may benefit the environment and enhance public safety. Oroville City Councilman Jamie Johansson and Colusa small business owner Patrick Kittle spoke of enhanced waterway access for recreational users as an economic development tool.   Maybe I should be more optimistic that the Legislature and the governor will finally overhaul the state's system of managing, regulating and delivering water. Meantime, I'm encouraged by the people who work successfully within the current system, one that absolutely no one would intentionally design.   – Paul Shigley

Planning and Conservation League & PCL Foundation Annual Environmental Legislative Symposium Saturday, January 30, 2010 9:00 AM – 5:00 PM Downtown Sacramento 4.5 MLCE Credit Available 2.25 AICP CM Credit Available BACKGROUND Since 1965, PCL and PCLF have been protecting the environment and quality of life for all Californians. We believe our environmental concerns can be addressed with creativity, ingenuity and most importantly action. By combining our individual and collective experiences and perspectives we can envision a greener landscape and unleash innovative remedies for some of our most critical problems. In 2010, we will offer 15 sessions, including cutting edge policy discussions, MCLE courses, and "How To…" workshops that educate and empower groups and individuals to improve their effectiveness in the environmental movement. Our panels will focus on solution oriented discussions. Our MCLE courses will include some of the most relevant and up-to-date information about ocean desalination, land use planning in the Central Valley and protecting wildlife in an uncertain climate. We are offering Certification Maintenance (CM) credit for planners also. Decision makers, planners, attorneys, business leaders and activists will walk away equipped with the tools needed to make important changes in their community and at the statewide level. PROGRAM HIGHLIGHTS Session 1 (10:00 - 11:15) • The Pros and Cons of Desalination (MCLE/CM) • Planning for the Effects of Global Warming (CM) • Transition Towns: Global Issues and Grassroots Solutions (CM) • Delta: The Next Generation (CM) Session 2 (1:30 - 2:45) • Protecting Wildlife in an Uncertain Climate (MCLE/CM) • Funding Watershed and Conservation Efforts in a New Era (CM) • From Seedling to Spruce: Growing Green Jobs (CM) Session 3 (3:00 – 4:15) • Who is Minding the Grocery Store? A Dialogue About Central Valley Land Use (MCLE/CM) • Strengthening Land and Sea Connections: New Strategies for Coastal and Marine Resource Protection (CM) • Water Justice (CM) Download the complete agenda . EVENT DETAILS: Date: Saturday, January 30, 2010 Time: Symposium 9:00 AM - 5:00 PM Cocktail Hour/No Host Bar 5:00 - 6:00 PM Venue: Sacramento Convention Center in Downtown Sacramento 1400 J Street (between 13th and 14th) Fees: Vary by selection Register: Online or by phone by calling: 916-313-4517 For more information about the PCL & PCLF Symposium please call Amber Schmaeling at 916-313-4517 or email her at ASchmaeling@pcl.org .

Now is the time to roll out new planning ideas – different codes, new public review processes, original ways of thinking. "These are revolutionary times," new urbanism guru Andrés Duany told about 150 planners, state government officials, architects and consultants during a gathering in Sacramento on Thursday. Most zoning codes simply perpetuate suburban sprawl and make development that is not dependent on automobiles impossible, Duany said. Yet the combination of public awareness about climate change, peak oil (the theory that oil production is on an inexorable downward trend) and the housing market bust has opened a window of opportunity to reconsider land use planning, he said. "Everything seems to be coming apart." California, according to Duany, has taken a step forward with SB 375, the 2008 bill that attempts to link land use planning and transportation investments in an effort to reduce greenhouse gas emissions. The notion of coordinating land use and transportation "is so amazingly obvious and so amazingly radical," he declared. But, as everyone recognizes, SB 375 is merely one step down the road. Duany urged bold actions and experimentation during the current window of opportunity. Based in Miami, Duany is a co-founder of the Congress for the New Urbanism, a proponent of form-based codes, and the designer of numerous urban, town center and traditional neighborhood development projects all over the world. He was brought to Sacramento by the Governor's Office of Planning and Research, the Strategic Growth Council, the Department of Conservation and a number of like-minded consulting firms. The event was billed as "Beyond Counting Carbon. Making Money, Food & Neighborhoods. Sustainable Community Strategies for Leveraging California's SB 375." A Planetizen poll recently ranked Duany as the number 2 urban thinker behind only Jane Jacobs. And he's a tour de force as a public speaker. During the gathering in the Sacramento City Council chambers on Thursday, Duany spoke for 2 hours without notes and didn't even bother to click on the PowerPoint presentation until the final 15 minutes. Duany speaks his mind and I'm betting he said something to offend or anger just about everyone at least once. Still, it's hard to argue with his basic point, which is that the suburban growth of the last 60 years is not sustainable economically, environmentally or socially. It's not even especially popular. Hence, "the system" needs to change. Much of Duany's basic pitch is 20 years old: Replace Euclidian zoning with form-based codes . Build communities that are connected, compact, complete, complex and convivial. Plan for people, not cars. Avoid the monoculture of massive housing subdivisions at all cost. Some of these ideas have been around so long they have become conventional wisdom, if not conventional practice. What struck me Thursday, though, was a newer subject for Duany, and that's process. He said the public review process is "old and sick," and must change. "The public process is completely out of control. The public is completely berserk," he opined. Only a few weeks ago, I had a e-mail exchange with one of California's leading land use lawyers in which both of us lamented Californians' fixation with process. We don't seem to give a damn about the final outcome as long as the process complies with all the rules. Of course, a key component of the process is public input. However, the vast majority of that input comes from vested interests – essentially, the developer and the people who live next to the proposed development site. Shouts of protest and sloganeering bombard the decision makers. No one speaks for the community as a whole. How could things work better yet still be democratic? Duany described a process employed in Perth, Australia. When a development project is proposed, the city rounds up about 150 citizens, much like a jury pool. The city then asks this group for volunteers to participate in a review process. Maybe 50 people agree to volunteer and 30 stick out the whole process, which involves some education about land use planning and the project, a few charettes and a handful of public meetings. When it comes time for a decision on the project, a representative of the opponents gets to speak, as does a representative of the developer. But the "jury" called by the city testifies as to what it sees as best for the community as a whole. This is how Perth got a large community center located on the beach – ruining the view of wealthy coastal homeowners who naturally opposed such a project. Would such a system be acceptable in California, the state where the term NIMBY was invented? It's certainly worth a try. And here's why: Most of what we need to do for the next generation – and maybe for much longer – will amount to retrofitting suburbia. That means tearing down and building lots of new stuff in people's backyards, which means that virtually every project comes with a built in group of opponents. They can shout loud enough to block the new housing, additional job sites, transit stations, town squares, community centers and even the big box stores that could both benefit the community and help California meet its greenhouse gas emissions reduction goals. I'm not suggesting that every infill and redevelopment project is a good one. But could Perth's process possibly result in a worse project than we would get now? Of course, Duany had lots more to say. Although it's not up yet, a video recording of Duany's entire presentation and an hour-long panel discussion that followed are supposed to be posted on the Strategic Growth Council website shortly. – Paul Shigley

For the second time this year, we've been reminded that the California Environmental Quality Act is not a set of tablets brought down from Mount Whitney. It's just a state law, and it can be changed whenever the Legislature and the governor can agree on changing it – especially during bad economic times. The latest reminder is AB 81X3 , signed by the governor the other day, which exempts the proposed football stadium in Industry from CEQA – and even from several pending CEQA lawsuits.  This law comes only a few months after the state budget deal, which truncated or eliminated CEQA review on several highway projects that Gov. Arnold Schwarzenegger wanted to get moving. At least you could argue that the highway projects are in the public interest. It's much harder to make the same argument for the stadium in Industry, whose exemption appears to be mostly the work of powerful lobbyists on behalf of a powerful developer, Ed Roski, and a small but powerful city. It saves the stadium project not only the trouble of doing an EIR, but also the trouble of getting into picayune fights in court with stadium opponents over things like whether the stadium is a project under CEQA . With the economy still sluggish, you have to wonder how many other cities and developers will come out of the woodwork seeking similar exemptions. For example, Sam Farmer of The Los Angeles Times suggested the other day that it would be impossible now for the state to deny the same exemption to football stadiums in San Diego and the Bay Area. This could especially become an issue in San Diego. How can the city expect to keep the Chargers when it has to build a "CEQA Stadium" and Industry – trying to lure the Chargers away – does not?  You can see how, in theory at least, the whole CEQA house of cards could come tumbling down quickly. Given that almost 40 years has elapsed since CEQA was first adopted, it's kind of surprising that this kind of thing hasn't happened more often. Public Resources Code Section 21080 contains a long list of "statutory exemptions" – things the state has given a pass on CEQA – but by and large they are not individual private development projects. Remarkably, for all the battling over CEQA, only very rarely has heavy-duty lobbying for a powerful developer such as Roski come into play. As mayor of San Francisco, Willie Brown famously manipulated CEQA to move along the expansion of San Francisco International Airport. He did it not by exempting the project but by having the Legislature pass a bill specifying what the mitigations would be. As mayor of Oakland, Jerry Brown got the Legislature to pass truncated CEQA review of infill projects in downtown Oakland . But a hard-charging developer hiring several big-ticket lobbyists to get his project exempted in Sacramento, as Roski did?  Despite all the bitching about CEQA over the years, I can't ever remember that happening before. The CEQA debate in the Legislature each year is pretty much confined to the homebuilders and the enviros arm-wrestling over whether or not to streamline arcane and time-consuming CEQA practices. So it'll be interesting to see whether Roski and Industry have opened a new line of attack on CEQA. Up to now, CEQA has been known as the law that launched a thousand environmental consulting firms. Will it now become known as the law that launched a thousand lobbying firms as well? – Bill Fulton

Ah, the growth wars. What would we land use journalists do if there were ever a truce? Last month, I wrote about Tahoe Regional Planning Agency Executive Director Joanne Marchetta's speech to the state planning conference . Although I took issue with some of what Marchetta said, I and several planners I spoke with agreed with Marchetta that environmental groups frequently fight the wrong battle. I wrote, " The knee-jerk reaction from environmental groups is opposition to any development within the Tahoe basin." I suggested that Marchetta and TRPA could do California a favor by figuring out how to convince environmental groups to support good infill and redevelopment projects. A friend who is an environmentalist warned me that I might get a sharp response to this characterization. And I did this week in the form a letter from six Tahoe-area environmental groups. Here's what they have to say: Dear Mr. Shigley, The following is in response to your article "The Case For Regional Planning?" written as a result of Tahoe Regional Planning Agency (TRPA) Executive Director Joanne Marchetta's speech to the APA, California, conference on September 14, 2009. You wrote, "If TRPA figures out a way to combat the environmental organizations' conventional wisdom that all development must be halted, the agency will truly have a lesson for the rest of the state to emulate." You have been misinformed. Lake Tahoe's conservation groups have long been strong supporters of good infill projects and responsible redevelopment. We believe, however, that Lake Tahoe is a resource of statewide and national significance that must be protected as a scenic and recreational resource for the benefit of all – including future generations.   For 40 years the states of California and Nevada have been parties to the Tahoe Regional Planning Agency Compact which created the TRPA. The compact required TRPA to establish environmental standards known as  "thresholds" and charges it "adopt and enforce a regional plan and implementing ordinances which will achieve and maintain the thresholds while providing opportunities for orderly growth and development consistent with such capacities." The compact required an updating of the regional plan in 2007. TRPA has yet to develop a coherent approach to the maintenance of its thresholds and compliance with the compact. However, early indications are that TRPA intends to focus on stimulating growth of the local population and increasing urbanization, rather than on achieving environmental thresholds, protecting scenic values, and providing high-quality outdoor recreational opportunities.  Ominously, the agency has already approved an exclusive new subdivision and the conversion of a campground that provides recreation and seasonal affordable housing into a luxury fractional timeshare resort.      Recently nine environmental groups around the basin, including the League to Save Lake Tahoe and the Sierra Club, formed together to demand accountability from the TRPA. We are NOT arguing that "all developments must be halted." We are arguing that new subdivisions – prohibited in Tahoe for nearly 40 years – are unnecessary, that affordable housing, scenery, and recreational values must be protected, and above all that environmental standards must be achieved as required by law. Rochelle Nason, Executive Director of the League to Save Lake Tahoe Ron Grassi,  Tahoe Area Sierra Club Friends of Tahoe Vista (FOTV) Ann Nichols, Friends of Crystal Bay/Brockway North Tahoe Preservation Alliance (NTPA) Laurel Ames, California Watershed Network