The City of Claremont's moratorium on dispensaries of medical marijuana and a Superior Court injunction shuttering a dispensary have been upheld by the Second District Court of Appeal. The city won the injunction in 2008 after demanding that the dispensary close because it violated the Municipal Code. The dispensary had contended that the city's moratorium and Municipal Code were superceded by the state's medical marijuana law and that the injunction was too broad. In 2006, Claremont denied a business license to the operator of the dispensary on the ground that the city's Land Use and Development Code did not permit a business to sell marijuana. The operator defied the city and opened the dispensary anyway. In response, the city adopted the moratorium prohibiting medical marijuana dispensaries. In early 2007, the city went to court to shut down the business as a nuisance. The Second District found that nothing in the Compassionate Use Act (CUA), approved by voters in 1996, precluded the city's actions. "The plain language of the statute does not prohibit the city from enforcing zoning and business licensing requirements applicable to defendants' proposed use," Justice Victoria Chavez wrote for the unanimous three-judge panel. "The CUA does not authorize the operation of a medical marijuana dispensary, nor does it prohibit local governments from regulating such dispensaries." While CUA (Proposition 215) passed in 1996, medical marijuana dispensaries have not proliferated until recently. Scores of cities and counties have enacted moratoria to block dispensaries from opening while the cities and counties consider a permanent ban or zoning restrictions. Some jurisdictions have banned dispensaries outright, while others have prohibited new ones from opening. Medical marijuana advocates say some of these regulations are illegal, although courts have sided with local governments. In the Claremont case, Darrell Kruse and Claremont All Natural Nutrition Aids Buyers Information Service (CANNABIS) applied for a business permit and business license for a "medical marijuana caregivers collective and information service" on September 14, 2006. Months earlier, city planners had advised Kruse that a marijuana dispensary would be illegal under Claremont's Land Use and Development Code. Nevertheless, Kruse opened for business on September 15 – the same day the city denied his application. He appealed the denial of his application to the City Council, but on September 26, it adopted a 45-day moratorium on marijuana dispensaries. The council later declared Kruse's appeal moot. The moratorium was subsequently extended through September 2007, and then through September 2008. Before the 2008 moratorium expired, the city adopted an ordinance banning dispensaries outright, according to City Planner Lisa Prasse. When Kruse kept his doors open, the city ordered him to cease and desist. Eventually, the city took Kruse to court, and, in January 2007, a Los Angeles County Superior Court judge found him guilty of operating a business without a license or permit. He was fined. When Kruse continued to sell marijuana, the city sought a restraining order and injunction to abate a public nuisance. Superior Court Judge Dan Oki backed the city's request and issued a permanent injunction shutting down Kruse's operation. On appeal, Kruse denied that his dispensary was a nuisance on the ground that it did not sell controlled substances illegally and insisted that state law preempted the city from shutting him down. In rejecting the nuisance appeal, the court cited the city's code, ruling that it "expressly states that a condition caused or permitted to exist in violation of the Municipal Code provisions may be abated as a public nuisance." In deciding the preemption claim, the court reviewed the 1996 voter initiative and the medical marijuana program (Health and Safety Code § 11362.5 et seq .) approved by the Legislature in 2003. The initiative made use of marijuana legal if based on a physician's "recommendation," and the 2003 law provided a defense against prosecution for doctors, patients and caregivers. But because neither measure addressed zoning, land use or business licensing, the state laws could not "preempt the city's enactment of the moratorium or the enforcement of local zoning and business licensing requirements," Chavez wrote. The court also held that the injunction – which barred Kruse from operating a dispensary anywhere in town while the moratorium was in effect – was not overly broad, and that the city correctly dismissed his appeal to the City Council as moot. The Case: City of Claremont v. Kruse , No. B210084, 2009 DJDAR 14037. Filed August 27, 2009. Ordered published September 22, 2009. The Lawyers: For the city: Jeffrey V. Dunn, Best, Best & Krieger, (949) 263-2600. For Kruse: Burton Mark Senkfor, (310) 274-4100.

A city may determine that project alternatives once considered potentially feasible for California Environmental Quality Act analysis are infeasible as actual projects, the Sixth District Court of Appeal has ruled. "The issue of feasibility arises at two different junctures: (1) in the assessment of alternatives in the EIR and (2) during the agency's later consideration of whether to approve the project. But ‘differing factors come into play at each stage,'" wrote Justice Richard McAdams, citing Stephen Kostka and Michael Zischke's Practice under the California Environmental Quality Act . "For the first phase -- inclusion in the EIR -- the standard is whether the alternative is potentially feasible. By contrast, at the second phase -- the final decision on project approval -- the decision-making body evaluates whether the alternatives are actually feasible. At that juncture, the decision-makers may reject as infeasible alternatives that were identified in the EIR as potentially feasible." The ruling could chill a frequent argument used by opponents of a project. Because CEQA requires an analysis of feasible alternatives, goes the argument, an EIR is necessarily inadequate if a decision-making agency later rejects the alternatives as infeasible. This was roughly the argument in the case decided by the Sixth District. At issue was a park plan in Santa Cruz. In 1979, city voters approved a ballot measure identifying greenbelt parcels for preservation. Among the parcels was Arana Gulch, which was privately owned property near Santa Cruz Harbor. In 1992, voters approved a measure requiring preparation of a greenbelt master plan. By 1994, the city had acquired the entire 67.7-acre Arana Gulch site, and in 1997 the city approved an interim master plan for it. The city's general plan and the greenbelt master plan called for construction of a multi-use path that would run through Arana Gulch and over harbor property to connect two parts of town. The path was one objective in a 2003 Arana Gulch master plan. Another was preservation and restoration of coastal prairie habitat, particularly Santa Cruz tarplant populations. The draft Arana Gulch plan called for 1.4 miles of pedestrian-only path, plus 0.6 miles wider, paved path that would comply with the Americans with Disabilities Act (ADA) and be suitable for pedestrians, bicycles and wheelchairs. Also planned were educational displays and viewing areas. Environmentalists objected that the proposed paths would intrude upon tarplant habitat; they urged the city to build the multi-use path around Arana Gulch. In 2006, the City Council approved the draft Arana Gulch plan and certified the EIR. The California Native Plant Society and Friends of Arana Gulch sued to block the project, primarily challenging the city's analysis of the alternatives. Santa Cruz County Superior Court Judge Paul Burdick ruled for the city. The EIR contained four alternatives: (1) no project; (2) no ADA-compliant path on harbor property, meaning no continuous east-west route; (3) no paved paths; and (4) no paved paths and no bridge over a gulch, again meaning no east-west connection. Although each alternative lessened or eliminated impacts to tarplant habitat, the City Council rejected all four as infeasible and chose the draft plan because the east-west connector was crucial. The council adopted a statement of overriding that declared that the project's social and transportation benefits outweighed the harm to tarplant habitat. In their appeal, opponents of the project contended that the four alternatives promoted the multi-use path at the expense of ecosystem restoration. If an ADA-compliant path was a prime objective, the city should have added the alternative of routing the path around Arana Gulch, they argued. But the court pointed out that the project was a master plan for Arana Gulch, not for a multi-use path. In addition, earlier plans and EIRs had rejected the idea of a multi-use path around Arana Gulch. Every alternative chosen for and analyzed in the Arana Gulch plan's EIR met at least some of the project's 10 objectives, and "Contrary to appellants' assertion," wrote McAdams. "there is no legal requirement that the alternatives selected must satisfy every key objective of the project." The argument in Santa Cruz, summarized McAdams, was really over policy, not environmental analysis. "Here, the city's infeasibility findings … are based on policy considerations, particularly the city's interest in promoting transportation alternatives, as well as its open space for persons with disabilities. Such policy considerations are permissible under the relevant statute, which calls for a determination that ‘economic, legal, social, technological or other considerations … make infeasible the mitigation measures or alternatives identified in the environmental impact report,'" McAdams wrote, citing Public Resources Code § 21081, subdivision (a)(3). In a concurring opinion, Justice Nathan Mihara added, "There is no inconsistency between the city's certification of an EIR that discussed potentially feasible alternatives and the city's determination that those alternatives are not actually feasible." The Case: California Native Plant Society v. City of Santa Cruz , No. H032502, 2009 DJDAR 13873. Filed August 20, 2009. Ordered published September 18, 2009. The Lawyers: For California Native Plant Society: William Parkin, Wittwer & Parkin, (831) 429-4055. For the city: James Moose, Remy, Thomas, Moose & Manley, (916) 443-2745.

The City of Los Angeles had no obligation under the California Environmental Quality Act to complete an environmental impact report for a project that it had rejected, the Second District Court of Appeal has ruled. The court dismissed all arguments put forward by the developer of the 555-acre Las Lomas project at the junction of Interstate 5 and Highway 14. " f an agency at any time decides not to proceed with a project," the court said, "CEQA is inapplicable from that time forward." Six years ago, developer Dan Palmer Jr. proposed 5,800 residential units, 2.3 million square feet of office space, retail space, community facilities and a hotel on the site in unincorporated Los Angeles County. About half the site would remain undeveloped. Palmer filed a preliminary application, specific plan and other entitlements with the City of Los Angeles to annex the county property. The adjacent City of Santa Clarita also tried to gain control of the site (see CP&DR Local Watch , January 2004 ), but Los Angeles had the advantage of already being in the process of expanding its sphere of influence in the area. In late 2006, the Los Angeles Local Agency Formation Commission approved Los Angeles' quest to include a portion of the Las Lomas site in the city's sphere – an early step toward annexation. A year later, Palmer signed a contract with Los Angeles to pre-pay the city's expected expenses for reviewing the project's EIR and associated applications. The developer followed up with a "master land-use permit application" for a slightly scaled down and retooled project. In December 2007, the city's Planning Department notified Palmer that his application was incomplete because it was missing the EIR. (In Los Angeles, project proponents typically prepare environmental documents for review by the city.) Throughout, Councilman Greig Smith questioned the project. Although city attorneys said the city was legally required to process the Las Lomas EIR and specific plan, Smith presented a resolution ordering the city to cease work on the application and EIR and to return all materials to Palmer. The City Council approved the resolution by a 10-5 vote in March 2008. Palmer's Las Lomas Land Company, LLC, which reportedly had spent millions of dollars on planning and environmental analysis, sued the city. Las Lomas contended the city had a duty under CEQA to complete the environmental review. The company further argued that the city's midstream rejection of the project violated due process and equal protection provisions in the United States and California constitutions. The company asked the court to order the city to complete the EIR and pay more than $100 million in damages. Los Angeles County Superior Court Judge David Yaffe dismissed all the claims in January of this year. On appeal, Las Lomas contended that a section of CEQA – Public Resources Code § 21061 – requires a public agency to complete and certify an EIR before approving or rejecting a project. The company also cited CEQA Guidelines § 15270, which permits a city to reject quickly a project based on a preliminary screening without an environmental review, but which is silent on midstream project denials. The court ruled that neither the statute nor the guidelines required Los Angeles to complete the Las Lomas EIR before denying the application. "CEQA applies only to projects that a public agency proposes to carry out or approve, and does not apply to projects that the agency rejects or disapproves," Justice Walter Croskey wrote for the court. "A public agency need not prepare an EIR for a project that it rejects. "To require a public agency to prepare and circulate a draft EIR, and prepare a final EIR including responses to comments, before rejecting a project would impose a substantial burden on the agency, other agencies, organizations, and individuals commenting on the proposal, and the project applicant," Croskey continued, "Such a requirement would not produce an discernible environmental benefit and would not further the goal of environmental protection." On the constitutional issues, the court stated that due process applies only when a landowner "has a legitimate claim of entitlement to the approval." Wrote Croskey, "The city's decisions whether to seek to annex the site, enter into a development agreement, and adopt the proposed specific plan were discretionary decisions. Las Lomas can assert no claim of entitlement to the annexation, development agreement, specific plan, and development entitlements that it seeks. The city's denial of those benefits and decision not to proceed with the project therefore was not a deprivation of property for purposes of procedural due process under the Fourteenth Amendment." In addition, the court ruled that the state's due process protection extends only to "property interests or benefits that are conferred by statute." Because the city had no mandatory duty under CEQA, Las Lomas's argument failed. The court weighed the equal protection claims using the "rational basis test," which, the court acknowledged, "is extremely deferential and does not allow inquiry into the wisdom of government action." In denying the claims, the court stated, "There are numerous conceivable legitimate reasons why the city would choose not to expand its boundaries and facilitate growth in this particular area at the time." Finally, the Third District refused to let Las Lomas amend its lawsuit based on different legal theories. The Case: Las Lomas Land Co., LLC v. City of Los Angeles , No. B213637. 2009 DJDAR 13813. Filed September 17, 2009. The Lawyers: For Las Lomas: Carlyle Hall Jr., Akin, Gump, Strauss Hauer & Feld, (310) 728-3242. For the city: Amrit Kulkarni, Meyers, Nave, Riback, Silver & Wilson, (510) 808-2000.

A couple of weeks ago, while I was listening to yet another SB 375 panel at the California state planning conference , a text message popped up congratulating me for being named the 99th top urban thinker in a recent Planetizen poll. Flattered – and, frankly, a little weary of regional emissions reduction target methodologies – I immediately checked it out. And there I was. Honored to be right behind John Norquist, a truly great mayor of Milwaukee. Both frightened and frustrated to be right ahead of Henry Ford.  Love him or hate him, I think it's fair to say that Henry Ford has had a much greater impact on American cities than me or practically anybody else, for that matter. When I looked at the rest of the list, I immediately realized that I should have gone hardcore in lobbying all my friends to vote for me – preferably on Facebook. How else can you explain Kaid Benfield (who is a pretty good urban thinker, frankly) polling so far ahead of Walt Disney? Or James Rojas (admittedly, one of my favorite people) edging out Henry George? So, just for the record, I came in 99th, but it's an honest 99th. I may be a politician, but nobody stuffed the ballot for me on this one. Anyway, you can probably argue over who should be 40th versus 60th versus 80th. But it's tough to argue with the Top 10: Jane Jacobs, Andres Duany, Christopher Alexander, Frederick Law Olmsted, Kevin Lynch, Daniel Burnham, Lewis Mumford, Leon Krier (Duany's main influence), William H. Whyte, and Jan Gehl, the pedestrian-oriented architect and author from Copenhagen. Seven trained designers, including several (Alexander, Lynch and Gehl) who are probably more important for what they wrote than what they designed. And three self-trained planning writers (Jacobs, Mumford, Whyte) whom no planning writer – take my word for it – would deny a spot in the Big 3. The more I thought about it, the more I realized that there are, in fact, a number of things that both disturb and reassure me about this list. Disturbing: Andres Duany No. 2, Elizabeth Plater-Zyberk No. 24. OK, Liz is not as good an after-dinner speaker as her husband, but she's at least as good an urban thinker. Sexism? Ressassuring: Former professors of mine on the list: Two ( Don Shoup , a well-deserved No. 15 and John Friedman No. 74); former students of mine on the list: Zip. At least so far. Disturbing: Where's Reyner Banham? Reassuring: Where's Joel Kotkin ? Disturbing: Co-authors of mine who are far, far higher than me on the list: One ( Peter Calthorpe , No. 19). Reassuring: Contemporary mayors on the list: At least two (Norquist and Jaime Lerner, No. 20). I'll tell you one thing for sure: Next time I'm not sitting it out.  Here's a fair warning to all my former co-workers, students, and clients, and all CP&DR subscribers: Next time I'm lobbying. Watch out, Jane Jacobs! – Bill Fulton

San Luis Obispo County supervisors have approved a new $165 million wastewater treatment system and plant location serving the unincorporated coastal community of Los Osos. The community has been subject to a state-imposed building moratorium since 1988 because the town's 6,000 septic tanks pollute groundwater and the Morro Bay estuary. Everything about a Los Osos sewer system – such as cost, location, type of system and operation – has been controversial since it was first proposed during the 1970s. The Los Osos Community Services District (CSD) finally approved the project about six years ago, and the Coastal Commission granted a development permit for the wastewater treatment plant in 2004. Voters in the district then recalled CSD board members who approved the project, and construction was halted. The CSD subsequently went into a political and fiscal tailspin, resulting in bankruptcy (see CP&DR In Brief , November 2005 ). Meanwhile, state lawmakers approved a measure handing responsibility for the wastewater project to the county. Earlier this year, the county Planning Commission approved a gravity-flow system and a wastewater treatment plant on agricultural land east of Los Osos. No fewer than 17 appeals were filed to the Board of Supervisors protesting the decision, among them from the Surfrider Foundation and the owners of a cemetery. They questioned the environmental impact report, complained about the cost that residents and property owners might bear, and urged a different location and design for the plant. Supervisors, nevertheless, backed the Planning Commission's decision. The project next heads to the Coastal Commission. Construction could begin as soon as 2010, although commission hesitancy or litigation by opponents could slow the project. A state appellate court has upheld the City of Manteca's 1,200% increase in a "government building facilities fee" despite development agreements the city had with several housing developers. The developers contended that the fee, which the city increased from $350 to $4,700 per home over the course of three years, was actually a new fee prohibited by the agreements. Manteca countered that it was simply modifying an existing fee after a nexus study showed that the original $350 fee would not even be close to covering the cost of adding city office space, a library, an animal shelter and a performing arts center. In an unpublished opinion, the Third District Court of Appeal rejected the arguments of developers Morrison Homes and Pulte Home. "The mere existence of the development agreements between the builders and city did not entitle the builders to pay only the $350 facilities fee that was in force when the development agreement with the city took effect," the court ruled. The development agreements require payment of the fee at the time of building permit issuance, and nothing in the agreements or the Mitigation Fee Act prevents the hike, the court determined. The case is Pulte Home Corp. v. City of Manteca , No. C058744. A Sacramento County Superior Court ruling blocking the transfer of $350 million from redevelopment agencies to school districts in fiscal year 2008-09 will stand because the Schwarzenegger administration will not appeal the decision. Judge Lloyd Connolly ruled the shift was illegal because there was no guarantee the money would be used for redevelopment purposes (see CP&DR Redevelopment Watch , June 2009 ). The administration and state lawmakers closed part of the 2009-2010 budget gap by moving $1.7 billion from redevelopment agencies to schools and state programs. This time around, the state restricted spending of the shifted redevelopment tax increment to redevelopment project areas, and to services for people who live in the areas or in redevelopment-assisted housing. The California Redevelopment Association contends the latest shift is still unconstitutional and is preparing a lawsuit.

Forced into negotiations by the state Legislature, the City of Walnut has dropped its lawsuit contesting the adequacy of an environmental impact report for a proposed professional football stadium and 3 million-square-foot entertainment complex in the neighboring City of Industry. Representatives of the two cities and developer Majestic Realty signed the agreement two weeks after state lawmakers tabled a bill that would have exempted the stadium and entertainment complex from having to comply with the California Environmental Quality Act and state planning and zoning laws. The measure would also have barred any legal challenges (see CP&DR , September 15, 2009 ). Faced with the possibility that state legislation could wipe out its lawsuit, the Walnut City Council voted 3-1 to approve a settlement that is similar to an agreement the City of Diamond Bar signed with Industry and Majestic Realty earlier this year regarding the project (see CP&DR In Brief , May 2009 ). In exchange for Walnut withdrawing its suit, Majestic agreed to do a number of things. It will pay the city $9 million for traffic mitigation, upgrade one of Walnut's intersections, and pay a fair share for traffic improvements elsewhere in town. The developer promised to pay from $350,000 to $500,000 annually, depending on the number of stadium events, into a "community fund" that Walnut may spend in any way. It will pick up Walnut's legal and consulting expenses. And Majestic and Industry agreed to work toward securing MetroLink train service to the project's site and to prevent stadium noise from reaching Walnut's residential neighborhoods. Multi-jurisdictional committees, composed of public representatives, were established to address transportation management and public safety. In an open letter to Walnut residents, city special counsel Jan Chatten-Brown said the agreement was the best the city could do under the circumstances. "It is extremely disappointing that so many members of the Legislature are willing to waive compliance with the California Environmental Quality Act and state planning laws in order to further the project," she wrote. Meanwhile, Industry Mayor David Perez commented, "It has always been our interest to address issues of concern as they relate to our neighboring cities." Industry and Majestic continue to negotiate with a citizens group that has also filed a lawsuit to block the project.

Special Event: Planning for Aging Communities – Nov 2nd , 2009 A special event in conjunction with UCLA Extension will be held on Monday, November 2, at the Westin Pasadena Hotel to explore the nature of today's inter-generational relationships in regards to housing and transportation decisions. We will consider what role cities can play in addressing the needs of an exploding older population and what responsibilities belong to the families. What are the options? How do cities plan for more age integrated communities and why should they? What are the lessons learned?  Anyone with an interest or expertise in housing and transportation issues will benefit from this special event.  The event will run from 9am to 2pm with breakfast and lunch included for a fee of $85.  CM (AICP) credits available.  For more information regarding speakers or to enroll, please contact UCLA Extension Public Policy at (310) 825-7885, or by visiting www.uclaextension.edu and referencing course code V3823.

A city may determine that a project has no significant effects on energy consumption if it exceeds the California Building Energy Efficiency Standards, the Third District Court of Appeal has ruled. The ruling appears to be the first on an environmental impact report's analysis of how a project might affect energy use, an area of the California Environmental Quality Act (CEQA) receiving increased attention because of concerns about climate change. Opponents of a proposed WinCo Foods store in Tracy argued that the city could not rely on the energy efficiency standards, which are part of the Title 24 building code, in determining if the store and rezoning of adjacent land would have a significant effect on energy consumption. The unanimous three-judge appellate panel disagreed. "The California Building Energy Efficiency Standards are meant to promote energy efficiency as the name implies," Presiding Justice Arthur Scotland wrote for the court, citing a section of CEQA on energy. "In other words, they ‘reduce the wasteful, inefficient and unnecessary consumption of energy.'" The court ruled that Tracy's EIR did not have to discuss every possible effect of energy use or conservation measure contained in CEQA's Appendix F, which lists numerous energy-conservation measures and their potential impacts. In a case touching on numerous CEQA aspects, the court also held that the Tracy City Council did not have to return an amended EIR to the Planning Commission for further review; that the city did not have to require the project developer to improve two affected intersections located outside the city limits; and that the city did not have to analyze a smaller store as an alternative. Still, the court's handling of the energy issue may be of greatest importance to CEQA practitioners. "This is the very first appellate decision to discuss the analysis of energy impacts in an EIR," said Sarah Owsowitz, an attorney with Cox, Castle and Nicholson and who represented WinCo Foods. As the court noted, CEQA requires mitigation measures to reduce "wasteful, inefficient and unnecessary" energy usage (Public Resources Code § 21100, subdivision (b)(3)). But neither the law nor the CEQA Guidelines explains how to determine if energy consumption will be wasteful, inefficient and unnecessary, she said. The court's decision to allow reliance on Title 24 standards provides some guidance. Rick Jarvis, Tracy's attorney, agreed that the court's holding is useful – for the time being. There is ongoing discussion of amending Appendix F to include a more prescriptive approach to energy, he noted. In 2003, owners of two parcels along Interstate 205 in Tracy applied to change the property's designation in the city's general plan and a specific plan from industrial to commercial. While the city was considering the request, WinCo Foods submitted an application for a 95,900-square-foot grocery store on the southern parcel. An EIR addressing the proposed amendments to the plans and the store was prepared. In May 2006, the Tracy Planning Commission approved WinCo's conditional use permit and recommended the City Council certify the project EIR and amend the general and specific plans. A group called Tracy First appealed the permit approval to the City Council. During a public hearing the following month, representatives of the group objected to the EIR and the project. The council directed its staff to revise the EIR to take into account some of the objections. By the time the project and EIR returned to the City Council in April 2007, the city had updated the general plan and rezoned the parcels to commercial. Over Tracy First's objections, the City Council certified the EIR and approved the specific plan amendment and conditional use permit. Tracy First sued. San Joaquin County Superior Court Judge Carter Holly ruled for the city and WinCo. In upholding the Superior Court, the Third District initially published only that portion of its decision concerning process. Specifically, Tracy First had contended that the EIR must be set aside because the City Council did not return the document to the Planning Commission after ordering revisions. The court noted that CEQA Guidelines require an advisory body on zoning and land use – here, the Tracy Planning Commission – to review an EIR "in draft or final form." Because the commission had reviewed the draft EIR in 2006, and because the project did not change, the council was right to go forward with the amended environmental document, the court ruled. " he City Council was not required to remand the matter to the Planning Commission when the city amended the EIR because (1) although the final EIR considered by the City Council in approving the project may have been a different draft, it was not a different EIR, and (2) there is no express requirement that the project application be remanded to the Planning Commission when the city amends the EIR before it is certified by the City Council and used in granting the project application," Scotland wrote. The court published the remainder of its opinion after receiving requests to do so from Tracy, WinCo, the League of California Cities, the City of Sacramento and others. On energy, Tracy First argued that the city violated CEQA because it did not include the northern parcel in its energy consumption calculations, and relied the Title 24 standards to measure potential impacts. The group also argued the city's conclusions on the matter were not supported by substantial evidence, relied on unsupported opinion and omitted a CEQA Appendix F analysis. The court determined that the EIR analyzed energy use on the northern parcel, and though the analysis was less detailed than the one for the proposed WinCo store on the southern parcel, it was acceptable because "no application has been submitted to build" on the northern parcel. The court further ruled that Title 24 standards were appropriate for determining a significant impact and that Tracy First did not prove that the city's conclusions or the expert's opinion lack substantial evidence. As for Appendix F, " either Appendix F, itself, nor any other authority requires that an EIR discuss every possible energy impact or conservation measure listed in Appendix F." In deciding that the developer did not have to improve two intersections in an unincorporated part of San Joaquin Valley, the court noted that the county did request that the city extract a "fair share" payment from WinCo. But the city declined because the county's transportation program did not include the two intersections. Instead, the city identified the project's effects on them as unavoidable significant impacts and adopted a statement of overriding consideration. In seeking the mitigation measures, Tracy First argued that under City of Marina v. Board of Trustees of California State University , (2006) 39 Cal.4th 341, WinCo was obligated to address the project's effects outside the city limits. In that ruling, the state Supreme Court said that Cal State University, Monterey Bay, which is located on the former Fort Ord Army base, had to mitigate the effects of campus growth elsewhere on the old base (see CP&DR Legal Digest , September 2006 ; In Brief , September 15, 2009 ). But the Third District noted that the Ford Ord Reuse Authority had a plan for upgrading infrastructure throughout the base. "The county had no similar plan to improve the intersections, either in the near-term or within several years," Scotland wrote. "Because of this, the holding of City of Marina , that ‘a commitment to pay fees without any evidence that mitigation will actually occur is inadequate,' supports the city's conclusion that the mitigation, though needed, was not feasible." According to WinCo attorney Owsowitz, the court placed an important limitation on the City of Marina decision. "This is significant because a lot of petitioners have been claiming that under City of Marina , you have to mitigate any impacts, anywhere," she said. Jarvis, Tracy's attorney, said the court's reading of City of Marina helps local governments confronted by a project's extraterritorial effects. "This issue comes up time and again for lead agencies," he said. For alternatives, the EIR analyzed four: no project; an industrial development; a larger WinCo store; and the proposed store with a smaller parking lot. Tracy First argued that a smaller store should have been considered too because it could have reduced the project's effects on traffic and air quality. But the group did not demonstrate how the effects would shrink with the store size, said the court. "There is no evidence in the record that fewer customers would patronize the WinCo Foods store if the store were smaller," Scotland wrote. "Thus, we can only speculate that traffic would be lighter. And Tracy First offers only its ‘presumption' that air quality would be improved." The Third District's decision could be instructive for another lawsuit filed by Tracy First, this one regarding the city's approval of a Wal-Mart expansion project. Tracy First has raised many of the same issues in that litigation. The Case: Tracy First v. City of Tracy , No. C059227, 2009 DJDAR 13866. Filed August 27, 2009. Certified for publication in its entirety September 18, 2009. The Lawyers: For Tracy First: Steven Herum, Herum Crabtree, (209) 472-7700. For the city: Rick Jarvis, Jarvis, Fay & Deporto, (510) 238-1400. For WinCo Foods: Sarah Owsowitz, Cox, Castle & Nicholson, (415) 392-4200.

California Water Projects and Urban Water Supplies: Environmental Compliance Requirements and Practical Approaches Efficient environmental review and permitting of water projects has become more important than ever, given regulatory restrictions and drought conditions that are increasingly limiting the state's water supplies. Currently, state law requires large development projects to prove they have sufficient water supplies. The objectives of this course are to provide an in-depth and up-to-date understanding of the complexities of environmental compliance for water projects and urban water supplies, as well as provide practical guidance on navigating the legal and regulatory maze. Participants will learn how California water projects and urban water supplies are affected by regulatory and recent case law requirements of SB 610 and SB 221 of 2001, water rights law, CEQA, the Endangered Species Act, and Clean Water Act Section 404. Participants will also learn how global climate change is changing environmental compliance for water projects and urban water supplies, and how to prepare comprehensive environmental permit strategies. Class will be held Thursday, December 10 at the Figueroa Courtyard in downtown Los Angeles. For more information or to enroll, please contact UCLA Extension Public Policy at (310) 825-7885, or by visiting www.uclaextension.edu and referencing course code V3322.

Special Event: Planning for Age-Integrated Communities A special event in conjunction with UCLA Extension will be held on Monday, November 2, at the Westin Pasadena Hotel to explore the nature of today's inter-generational relationships in regards to housing and transportation decisions. We will consider what role cities can play in addressing the needs of an exploding older population and what responsibilities belong to the families. What are the options? How do cities plan for more age integrated communities and why should they? What are the lessons learned? Anyone with an interest or expertise in housing and transportation issues will benefit from this special event. The event will run from 9am to 2pm with breakfast and lunch included for a fee of $85. For more information regarding speakers or to enroll, please contact UCLA Extension Public Policy at (310) 825-7885, or by visiting www.uclaextension.edu and referencing course code V3823.

There are consequences to every public policy choice we make. An editorial in today's Monterey County Herald makes the argument that one consequence of not providing enough decent, affordable housing for low-wage laborers is crime and violent death. The Herald's argument may be a bit of a reach in this particular instance, in which a Salinas police officer shot and killed a young man wielding a knife. Still, the fact that overcrowded, slum-like conditions exist in parts of Salinas is not news. Nor would it be news in many cities and unincorporated towns in California. We simply don't have enough decent, affordable housing for people of modest means. The existence of shoddy, overcrowded housing and neighborhoods in Salinas is the result of public policy choices made by the Salinas City Council, the Monterey County Board of Supervisors, the state Legislature, the administration and the federal government. In other words, these are public policy choices made by all of us. And none of the consequences are good. – Paul Shigley

It's increasingly clear that land use planners are not quite sure what to do about climate change. For the third consecutive year, the subject of climate change dominated the annual conference of the American Planning Association, California Chapter. What was evident during this year's event, which concluded September 16 in Squaw Valley, was that the issues are extraordinarily complex, and the available tools are not ideal. Planners, as well as engineers and attorneys, acknowledge they are "just making it up as they go." No one appears to feel comfortable about it. The generally accepted premise is that certain land use patterns and urban development forms result in less emission of climate-altering greenhouse gases (GHG) than other land use patterns and urban development forms. Because most of the GHG reductions derive from decreased use of automobiles, the emphasis is on compact, walking- and cycling-friendly, mixed-use development near transit. So far, so good. But … • CEQA is not climate friendly. In our state, the California Environmental Quality Act lords over every land use plan, public works project and real estate development. And, as Bill Fulton wrote last week , CEQA reviews often cite increased traffic as a negative impact. How do we typically mitigate for that impact? Build more and wider roads – so that it's easier for people to drive! • LOS is the wrong measurement. Level of service is a traffic congestion measuring stick. At LOS A or B, traffic moves freely. At LOS E or F, bottlenecks and slowdowns are common. Many jurisdictions have adopted LOS C or D as their standard. The way to achieve a high LOS is by building lots of wide streets and roads that move cars quickly – so that it is easier for people to drive! "LOS is going to work against your walkable area," City of Modesto planner Cindy van Empel summed up during one panel presentation. • "Our transportation models suck." So said the always-candid Jennifer Hernandez, an attorney with Holland & Knight. Indeed, I heard over and over at this year's conference that the Institute of Transportation Engineers' trip generation handbook incorrectly predicts the number and length of trips produced by a California development, and that the ITE handbook is worthless for forecasting GHG emissions. Ron Milam, of Fehr & Peers, and Jeffrey Tumlin, of Nelson/Nygaard, talked up the need for transportation models to take into account factors such as building density, urban design, diversity of uses, proximity to transit, transportation demand management systems, and demographics. Research is starting to show that mixed-use, transit-oriented infill development produces one-third fewer vehicles miles traveled (VMT) than typical greenfield development, according to Milam. • It's not that simple. The overarching objective seems to be reducing VMT. But Shari Libicki, a Stanford professor and principal in consulting firm Environ, pointed out that not all VMT is the same. A car with a cold engine making a low-speed, two-mile trip may generate as much carbon dioxide as a car with a warm engine traveling 10 miles at freeway speed, according to Libicki. Considering that people are always going to drive some, which trip should land use planners try to encourage? One thing that is certain is that the field is evolving. Maybe we will achieve total enlightenment during next year's APA California conference in Carlsbad. Or maybe we'll just be one step closer.      – Paul Shigley