It's only $130 million. That's all the Affordable Housing and Sustainable Communities (AHSC) program has to spend this coming year. Spread out statewide, it's enough money to help steer some projects toward the prescribed goal of reducing greenhouse gas (GHG) emissions through environmentally responsible development. It's not enough to build a lot from scratch. The rules being drafted now to distribute that money will channel more funding later if the Legislature keeps its promise to give the program 20% of future cap-and-trade auction proceeds. ( Streetsblog 's Melanie Curry reported last week that six mayors of larger California cities paid a lobbying visit to Sacramento in part to make sure the promise held.) But in view of California's housing and infrastructure needs, $130 million isn't big money, not really. When the Strategic Growth Council (SGC) held workshops last week on how to build program guidelines within the new statutory framework, the strength of the response testified to the level of municipal hunger for housing and infrastructure subsidies, as well as interest in sustainability for its own sake. For the Oakland workshop of August 14, the limited supply of 150 free tickets, reserved via online registration, ran out several days in advance; the organizers announced a waiting list and asked to be told of cancellations. Chances for projects in the works Some participants assuredly had projects in mind that could benefit from even a small fraction of that AHSC money. During the Oakland workshop, Steve Hernandez, a housing specialist with the San Leandro Community Development Department, spoke in a small-group session about his city's need for affordable housing funds. He noted Redevelopment was gone -- and with it the affordable housing set-aside of tax increment funds -- and that San Leandro's federal HOME program funds had declined by 65% since 2010. He had a project in mind that AHSC could help: affordable housing across from the San Leandro BART station to be developed in cooperation with BRIDGE Housing. He explained later that the 115 affordable units of Phase 1 "will be underway," hence too far along to qualify for AHSC money, but the new program's Notice of Funding Availability (NOFA) "may coincide with the timeline of Phase 2," so "perhaps Phase 2 can be awarded AHSC program funds" to help build a further 85 units of senior housing planned for the site. (The project is the Cornerstone Apartments -- see http://www.sanleandro.org/depts/cd/projects/crossings.asp.) Talk at the workshop wasn't so much about what to build first, as about choosing which increments to support: what tendencies to encourage most; who could or should benefit soonest from more compact, less vehicle-dependent planning; and just how much holistic multimodal public-private goodness could be realistically coaxed to bloom in each particular project using the frugal irrigation methods available. Tyrone Roderick Williams, director of development with the Sacramento Housing and Redevelopment Agency, came to the workshop discussion with a large-scale project in mind: the remaking of Twin Rivers, an aging complex of single-story public housing buildings between the closed railyards and the curve of the American River north of downtown Sacramento. Described at http://www.shra.org/ChoiceNeighborhoodsInitiative/TwinRivers.aspx, the project is the recipient of a federal Choice Neighborhoods Planning Grant and part of a larger city plan to redevelop the River District-Railyards area. At the workshop, Williams said Twin Rivers would replace the existing public housing with new units, add more housing, build a new transit station, and add support for a nearby school as part of a plan involving many public and private partners and funding sources. Documents on the Twin Rivers project Web site discuss goals of enhancing employment, education and health services for existing residents in and near the public housing, including the neighborhood's large homeless population. In an interview after the meeting, Williams said AHSC might be able to help with the housing component of the project next to the transit station, though the city wouldn't determine its proposal to AHSC until the guidelines for the program emerged. He said nobody had yet mentioned amounts of money but it appeared types of funding could vary with a project's type and scale. How many purposes can one project serve? Williams had been one of several discussion participants warning against creating pressures on projects to serve too many GHG-reducing purposes at once. Later he clarified, "Those of us who are engaged in affordable housing are facing those pressures all the time." For example, under the competitive scoring system for low-income housing tax credit applications, "you get more points by putting more services and more aspects of the project into the budget" so "in an effort to try to score higher you include other things to help you get points but all of those things cost money." He said, "My hope is that we don't fall into that same situation where to be competitive you're trying to do so many things that by the time you get funded your project costs have gone through the roof in an effort to get funded." Meea Kang, president of Domus Development and a board member of the California Infill Builders Federation, brought concerns to the same small-group discussion at the workshop about the difficulty of keeping neighborhood-serving businesses in the retail spaces of new affordable housing developments. For example (she wrote afterward), "it's difficult to lure new grocery stores into underserved communities." And "it is the developer that has to make the substantial upfront investment to build out the retail improvements and there is always a risk that the small business may not survive the first two years." At the workshop she suggested that, to encourage genuinely local businesses in underserved communities, program money might be used for tenant improvements -- for example, to convert a warehouse to a farmers' market. That would serve GHG reduction, she said, because people wouldn't have to drive so far to the store. She suggested sometimes housing and retail might be best "decoupled" as separate side-by-side projects in different buildings, where the retail use might require its own separately managed support program. As a developer she had a different perspective from Williams' on the problem of trying to do too much. She said, "every local government is going to know that these projects are going to get funded," so from her experience "you've got every other agency coming at you with barriers." She clarified later that she had in mind, for example, "utility districts, special fee districts, various departments," and "expensive impact fees or mitigation requirements or both." Meaning that each agency would like to see the funded project contribute to a needed improvement in that agency's own area. Her concern being that such demands would together "overburden the project to fix all the problems of the past." Kang suggested the process should allow the agencies to work together and support projects while cooperating to reduce overall fees and burdens in order to get more built. Ignacio Dayrit, a brownfields redevelopment specialist from the Bay Area, put in, "Bingo, it's Prop 13." Kang agreed. Dayrit said, "Someone had to say that."  Because, he said, "If you've owned property for more than ten, 15 years, you're not paying your fair share of anything ." That is, the burden falls on the developer to pay for infrastructure needs. (Williams, in his interview, responded to a question about the idea of a cooperative application process by saying any application of the type sought "will require a partnership" by its nature, as at Twin Rivers.) A professionalized process The people who reserved and used the Oakland workshop's 150 tickets -- developers, planners, officials, advocates -- were nearly all policy or planning professionals in some way. That led to a well-informed level of discussion -- for example, when Dayrit noted that only federal subsidies remained deep enough to serve the poorest tenants, he didn't have to spell out the point that "affordable housing" is "only affordable to the middle income" range. Participants already understood the difficulty, for private nonprofits, of using tax-credit housing subsidies to house tenants at incomes below 50% of area median. On the other hand, it was a conversation held more among professionals than among directly affected community members. Devilla Ervin, a fourth-generation West Oakland resident now in his second year of Americorps service at West Oakland Middle School, came to the workshop as a member of a community activist group, New Voices are Rising. Wearing a business-casual polo shirt, he said he quickly decided, "I'm a little underdressed." (Most participants arrived in suits or similar, though one tall bearded man wore denim overalls.) Ervin told the small-group session that West Oakland was seeing "a lot of development thrown at us" and people "coming in telling us what the community should look like." Out of an extended family formerly based in West Oakland, he said he and his cousin remained in town, but the rest were mainly displaced: "Sacramento, Stockton, Tracy, Lodi." (Ervin's related comments on Plan Bay Area, prepared through a project of Breakthrough Communities and Six Wins Coalition/New Voices are Rising, are at http://www.mtc.ca.gov/planning/plan_bay_area/comments/Invididuals/Ervin_Devilla_5-16-13.pdf.) Among his concerns related to GHG reduction, Ervin said he personally hoped to buy a house and, when he did so, didn't want that to lose his current strong access to transit. He was concerned that new families moving to new development in West Oakland were often sending their children to Claremont or other schools out of the area -- so although the new arrivals' children could walk to West Oakland Middle School, they were actually traveling elsewhere each day. And he worried that new development near transit could displace low-income transit riders, only to replace them with more affluent residents who could afford not to depend on transit, hence might use it less. Asked if he had thoughts about who was or wasn't in the room, he wrote later, "Yeah, I was a little disappointed with the lack of community voice in the room especially from the youth. Our young people are the ones that are going to inherit the cities that reflect the decisions we make today. They should have been there. Other than that I think it was a very informative and worthwhile investment of my time." Defining 'disadvantaged communities' Discussion at the workshop returned often to questions that the meeting officially needed to sidestep due to the regulatory division of labor: What constitutes a "disadvantaged community"? And when can a disadvantaged community be said to benefit? Formally speaking, those questions are largely to be answered by another process. As established by SGC's opening actions on the program (see http://www.cp-dr.com/articles/node-3529), the AHSC program will be directed by SGC, but in close cooperation with several other state agencies, with administrative duties delegated to the Department of Housing and Community Development for the main stream of funding, and to the Natural Resources Agency for the smaller fraction reserved to protect agricultural land from sprawl. By statute the program must spend half its money on affordable housing, and it also must spend a potentially (but not necessarily) overlapping half to benefit disadvantaged communities. (At each of last week's three SGC workshops -- in Fresno, Oakland and Los Angeles -- staff made an opening presentation explaining the statutes, institutional history and program mandates. For the 45-minute Fresno version of the presentation see http://sgc.ca.gov/s_affordablehousingandsustainablecommunitiesprogram.php.) Discussion moderators from SGC and HCD directed further discussion about the meaning of "benefit to disadvantaged communities" toward a separate set of workshops on defining disadvantaged communities under the SB 535 rules that apply to all cap-and-trade grant programs, to be held August 25 through September 3 by the Air Resources Board (ARB) and CalEPA. Discussions on agricultural land protection were also deferred to their own set of workshops, to be scheduled for October. At the August 14 Oakland workshop, Allison Joe, deputy director of the SGC, said in the opening group session that, although ARB's timetable for developing guidelines is longer than SGC's, "We have all been working with ARB very closely to ensure that what we do, and what we develop at this point, will adhere to and actually align with what will be developed as guidance next year, so there's a little bit of a dance but there's some really good coordination going on that's actually really helped our overall program by being able to work with ARB so closely." The rules reserving benefits for disadvantaged communities brought hope to some workshop participants from areas of the state that broadly qualify for such status. But they drew worried questions from some urban policy veterans who asked what would count as a benefit, and what overlap might be presumed to exist between a disadvantaged place and a disadvantaged group of people. And several participants seemed uncertain exactly where the line fell between SGC's rulemaking authority and that of the environmental agencies. (A discussion group leader offered an illustration on the difficulty of defining a benefit: if a bike path passes through a disadvantaged community, does it provide enough of a benefit to that community?) In preparation for the August 25 - September 3 workshops, the ARB began to post guidance on its workshop site at http://www.arb.ca.gov/cc/capandtrade/auctionproceeds/upcomingevents.htm explaining potential applications for CalEPA's CalEnviroScreen tool to the definition process. The screening tool, which appears in its newest form at http://oehha.ca.gov/ej/ces2.html, provides compelling maps that apply CalEPA's disadvantage formula statewide at census tract level. The widest spreads of red and orange colors indicating disadvantage are across the San Joaquin Valley; they reappear in poorer neighborhoods of each major city, notably in inland LA County and between Ontario and San Bernardino. The CalEnviroScreen standard is based on a weighted combination of pollution burdens, population characteristics that imply vulnerability to further effects of pollution, and socioeconomic disadvantages: low formal educational attainment, linguistic isolation, poverty and unemployment. A CalEPA paper posted on the workshop site August 19 offers five alternative measures consisting of either the unchanged formula, or choices based on narrowing or re-weighting the mix of factors. On the workshop site, ARB promised imminently to post an interim guidance draft for "maximizing benefits to disadvantaged communities." 'Benefit' to whom? Jeffrey Levin, policy director for the East Bay Housing Organizations, was among those wary of assumptions in "disadvantaged communities" definitions. He wrote later, "We have two sets of concerns about this process. The first is whether 'disadvantaged communities' should be defined based on populations or geographic places. We think it's important to focus on populations as well as places. Second, investments need to be guided by principles and criteria that ensure that lower income households are the primary beneficiaries of the investment, and that lower income communities do not suffer adverse impacts." He warned, "We have all seen examples where investment in a 'disadvantaged community' brings little or no benefit to lower income households, and where such investment actually causes harm," as with transit-oriented development in areas defined as disadvantaged that does not itself contain affordable housing. Where such choices displace lower-income people "from transit-rich areas to the periphery of the region," he wrote, "they become more dependent on automobiles and that means more GHG emissions. And the transit may actually lose ridership because the more affluent new residents tend to be less likely to use transit as much as lower income residents." Meanwhile, he suggested, it might sometimes help disadvantaged populations to place affordable housing in higher-income areas instead of lower-income ones. "In short - we are very supportive of Transit Oriented Development, but it needs to be done in a way that clearly promotes social equity." Goals of EBHO included mandatory affordable housing in transit-oriented development and early planning for affordable housing in areas that may become expensive in time because of private development. At the meeting, Dayrit, the brownfields redevelopment specialist, worried that programs encouraging infill tended to lead to construction in areas that often lack services, where it's easier to build, that often tend to be "disadvantaged communities to begin with," so when housing for disadvantaged people is built there, "the concentration of these disadvantaged communities in existing disadvantaged communities" gives the impression of creating a "ghetto or unattractive neighborhood." He noted, for example, the appearance of strong opposition to new services for homeless people in Hunter's Point in San Francisco -- though also that affordable housing might also be opposed in an affluent neighborhood. Public health cautions Solange Gould, a PhD candidate at UC-Berkeley working with the Public Health Institute, brought some public health warnings to the "unintended consequences" part of the discussion, which she clarified after the workshop: While she joined the public health consensus in favor of walking and biking -- for personal health and "community cohesion" as well as GHG reduction -- she warned against inviting people to walk and bike in risky traffic situations, instead calling for "good infrastructure that separates cars and people as much as possible." Gould wrote, "Disadvantaged communities are often more exposed to heat with lack of vegetation or green canopies" and "Studies of extreme heat have shown large racial disparities in heat-related deaths. There are maps that show that low-income and communities of color are more likely to live in areas with little tree canopy and permeable surfaces and are thus more vulnerable to urban heat islands." She suggested projects should get priority if they are in urban heat islands and add mitigations such as vegetation, white roofs, permeable surfaces, open space or other mitigations. Proximity to transit, while mainly a good thing, has special risks for the many low-income tenants who live with asthma, cancer or respiratory illnesses. (Vulnerability to respiratory illness is among the CalEnviroScan criteria for disadvantage.) So Gould suggested siting transit-oriented development more than 500 feet from freeways or, if that can't be done, then "really high-quality indoor air ventilation systems" such as MERV 13 systems. She wasn't calling for all such costs to fall on the developer but said "reducing those health care costs is worth the cost of the indoor air filter." She suggested they could be financed as in the State of Oregon's "on-bill financing program, in which the energy savings from home energy upgrades pay off the bill from the installation." More ideas and arguments: Rob Wiener of the California Coalition for Rural Housing raised a question during the main presentation about the choice of rental apartments as examples in the opening presentation, asking staff to confirm that the legislation was "tenure-neutral" -- allowing homes to be built for single-family ownership as well as multifamily rental. A staff member responded that in the prior transit-oriented development program, the possibility was left open to build single-family homes for sale, but no qualified applications came in for that approach, and there were also relatively few applications for acquisition/rehab of existing affordable housing. Rico Mastrodonato of the Trust for Public Land brought a message in favor of urban parks and open space, including to reduce heat effects and sequester carbon, along the lines of a paper his group has published at https://www.tpl.org/quantifying-greenhouse-gas-benefits-urban-parks Ervin responded to a comment about the need for urban open space by saying West Oakland had several parks already but people were afraid to use them. Kang argued against requirements for infill developers to pay for transit passes. Clarifying her comments later, she wrote, "If infill developers have to factor in the cost of transit passes, it will raise the cost of market rate housing and make affordable housing very hard to underwrite." Despite a suggestion in the discussion that computer-tracked passes like the Bay Area's "Clipper Card" might make such costs more predictable, Kang wrote, "In my opinion if the new housing is located near reliable transit and are located in walkable communities new residents will choose to get out of their cars. The new housing should not be overburdened with the additional cost of transit passes." Dayrit, who is a consultant to the Center for Creative Land Recycling, had a comment related to his work there: that a property to be redeveloped would have "transaction costs associated with environmental site assessments" that ought to be included as an eligible activity. Gould and Dayrit mentioned the perennial Bay Area transit advocates' goal of building more new housing, including affordable housing, in suburbs as well as urban centers. Dayrit argued for walkable density in suburbs as a good in itself: "people are afraid to talk about density." Gould said support for local schools should be part of efforts to draw households to newly developed areas. Workshop materials and comment instructions are on the SGC site at http://sgc.ca.gov/s_affordablehousingandsustainablecommunitiesprogram.php and on the ARB workshop site at http://www.arb.ca.gov/cc/capandtrade/auctionproceeds/upcomingevents.htm. Comments on the ARB and CalEPA materials are due September 9. A summary by Streetsblog 's Melanie Curry, who was at the Oakland meeting, is at http://la.streetsblog.org/2014/08/19/ca-seeks-input-for-affordable-housing-and-sustainable-communities-program/ . Allison Joe briefly provided editorial assistance to CP&DR in the past.

Dear CP&DR Readers, By now, you may have heard that I have decided to move on from my current job as Planning Director of the City of San Diego to become the Director of the Kinder Institute for Urban Research at Rice University in Houston. (See http://kinder.rice.edu/content.aspx?id=2147485438&blogid=306.) I'm writing this short missive to reassure you that I remain committed to California Planning & Development Report – and, in fact, I'll have more motivation and bandwidth to devote to CP&DR than I have had in recent years. I know that may seem strange – that somehow moving from being a planning practitioner in California to working with an academic institution 1,600 miles away in Texas will actually help make CP&DR better. But my recent experience in San Diego has given me a new appreciation of what you, CP&DR 's readers, need to know on a daily basis. And my move to Rice University brings with it two major advantages: First, it eliminates a lot of conflicts of interest that have made it difficult for me to make CP&DR as good as it can be; and, second, the move to Texas will give me great motivation to keep in touch with California planning – and bring that knowledge to CP&DR . The decision to move from San Diego to Houston was a difficult one to make. I have greatly enjoyed my time as the chief planner for California's second-largest city – the fast pace, the interaction with politicians and developers and citizen leaders, and, yes, even the constant CEQA battles. But those of you who know me well can probably readily understand why I'm going: Rice is committed to making the Kinder Institute the leading think tank on urban and metropolitan issues in the country. The chance to lead that effort is too good an opportunity to pass up – and, ultimately, ought to help cities all across the nation, including those in California. I cannot tell you how important my San Diego experience has been in rounding out my knowledge of planning practice in California – and, in particular, understanding what you need to know on a daily basis. In particular, I have come to appreciate how important – and, often, how frustrating – the California Environmental Quality Act is in the daily life of practically every planner in California. I hope that this experience has already been reflected in the columns and articles I've written over the past few months. I can assure you that I will be bringing all of that experience to my role as publisher and columnist.  My work as San Diego planning director in many ways presented the greatest challenge I have faced in 28 years of publishing CP&DR . The all-consuming nature of the job made it difficult for me to devote enough attention to the publication. The fact that I was a practicing planning director in a city constantly making planning news of statewide importance – and, furthermore, that I was a Form 700 filer with limitations on my outside income – made it very difficult to do the job I needed to do as owner and publisher of this publication. My new job will be pretty consuming too – but it frees me of many conflicts of interest and puts me back in the mode of writing, analyzing, and thinking about planning issues full-time. That's good for CP&DR . We can finally move forward with so many things, including a long-overdue update of the Web site. And the move to Texas does not mean I'm checking out of California. California planning has been the primary focus of my life for 30 years, and I owe it to you – and to myself – not to surrender the knowledge and networks I have built during that time. You'll see me around at major conferences and events in California, and soon enough I will have to plunge into the producing the fifth edition of Guide to California Planning . All this will be made much easier by the amazing efforts of CP&DR 's new editor, Martha Bridegam, who came on board in March. You've probably already noticed the vast increase in both the quality and the volume of CP&DR 's coverage in the last few months. That's mostly due to Martha – an experienced Bay Area journalist and lawyer with a longtime focus on housing issues. So over the next few months, as I make this transition to Texas, Martha and I will be working hard to make CP&DR better than ever. And look out for me: I'll probably see you at the California APA conference in September and, beyond that, at the annual UCLA Land Use Planning and Law Conference in January. Because just as California will continue to be an important part of my life, I hope CP&DR will continue to be an important part of yours. Bill Fulton Publisher

It's no secret that Walmart stores have caused the entire economies of small towns to decamp for some highway strip and, ultimately, wind up in Bentonville. But at least you know a Walmart when you see it - from miles away, no less. A similarly insidious trend toward generic placelessness has been taking place in smaller-scale communities, even in many of the places that progressive planners hail as attractive, functioning communities. The Los Angeles County city of Manhattan Beach is the latest such community to rouse from its chain-induced slumber. According to a recent article in the Daily Breeze, the city's downtown has been losing many of its stalwart independent stores to higher rents and the corporations that can pay them. Advocates of the free market would call this creative destruction. But it's more than destruction: it's extinction. Once an endearing store or restaurant is gone, replaced with a bank or a Walgreens, it's gone. "We need to plan out (the area) so we don't one day end up with no local flavor," Manhattan Beach Mayor Amy Howorth told the Daily Breeze . I've seen it in my own neighborhood in West Los Angeles. The age-old stationery store, which had downsized twice, went entirely kaput three years ago. It's been replaced by a Subway, and a Citibank ATM. (Not a Citibank branch; just an ATM, entombed in a stucco wall.) Our beloved bookstore is long gone. So is the pizza place. Manhattan Beach is taking a potentially courageous step. A few weeks ago, the City Council imposed a temporary moratorium on ground-floor banks and offices through an urgency zoning ordinance. It has pledged to study ways to preserve Manhattan Beach's "small-town feel," according to Howorth. I hope that they conclude that the public good - and even the city's economic vitality - permits and requires them to do something. I've always found talk of economic development to be curious. Back in the days of redevelopment agencies, agencies tried to get something built and leased so that properties would generate tax revenue. But often it seemed that no one cared about who or what was going into the properties. A McDonald's or a FedEx store was as good as anything else. Plenty of cities seem to have the same attitude: cut the ribbon on something - anything -and it's a success. This attitude ignores one of the most basic yet least-discussed principles in economic geography: the multiplier effect. I shouldn't have to explain the multiplier effect. But, then again, I do. Most cities seem to be terrible at it. The multiplier effect means that when a clothing store, coffee shop, or burger joint is locally owned and caters to local customers, the customers' money remains in the community and then gets re-spent and re-invested. At least part of it does, anyway. It doesn't wind up in Bentonville, Seattle, or Oak Brook. And it doesn't pass into the hands of thousands of placeless, faceless, passive shareholders. As for the benefits of economies of scale, I don't buy it. I'm a journalist. I've written many an article in "third spaces," such as coffee shops (even Starbucks). I've done so in dozens of cities, and, as often as possible, in independent coffee houses, usually in increments of $2.50. I know full well that it is possible to run a coffee house without operating a proprietary network of suppliers, distributors, and designers. Plenty of entrepreneurs make a good living at it. The only difference between Common Grounds, which was doing booming business when I passed through Lexington, Kentucky, and Anastasia's Asylum, which got booted out of Santa Monica, is the rent that each has to pay. They'd otherwise be equally viable businesses, and more beneficial to their respective towns than Starbucks is. But Starbucks can afford to lose money in Manhattan Beach because it has thousands of profitable locations. A Manhattan Beach location might be a "loss leader" that exists just to strengthen the overall brand.  That's why cities have every right to regulate, or at least promote, the ownership of their private amenities. Naturally, property owners are going to bristle at this idea. One landlord expressed a predictable, and sentiment, in the Daily Breeze: "Once you start restricting who you can rent to and rejecting certain tenants, you're messing with the free market and property rights." His concerns are understandable, but they miss the point. Ever since the gavel fell on the Euclid decision, cities have been allowed to say what goes where. There's no such thing as a "free" real estate market. The retail buildings in downtown Manhattan Beach exist there - in size and appearance - only because city law has said they can. They are leased by stores, and not cattle yards and pot shops, for the same reason. Certain tenants are already excluded and included. Landlords need to balance their own understandings of "highest and best use" with those of the city and its populace. That's the bargain they make when they decide to put their money into real estate and not, say, into Lotto tickets. It's the job of city government to decide what's best for the city as a whole. In many cases, local ownership may be best. It's hard to feel super-sorry for Manhattan Beach, of course. It's paradise, with six-figure salaries all around (nine-figure salaries if you're among the professional athletes who live there). Struggling small towns and inner-city neighborhoods need the multiplier most dearly. But that's the point: if independent businesses can't survive there - in a place where people have the taste and the discretionary income to seek out something special - then where can they survive?

The California Supreme Court has ruled that an initiative is not subject to the California Environmental Quality Act even if it is adopted by a local elected body rather than placed on the ballot. "Because CEQA review is contrary to the statutory language and legislative history pertaining to voter initiatives," wrote Justice Carol Corrigan for a unanimous court, "and because policy considerations do not compel a different result, such review is not required before adoption of a voter initiative." The case involved the expansion of a Wal-Mart in the City of Sonora. In 2010, as the city was considering expansion of the Wal-Mart to sell groceries, Wal-Mart supporters circulated an initiative petition to adopt a specific plan to accommodate the proposed expansion. Rather than placing the measure on the ballot, the Sonora City Council adopted the initiative. The Tuolomne Jobs & Small Business Alliance – apparently similar to other labor-oriented groups elsewhere in the state that use CEQA to fight Wal-Marts – sued, claiming the city should have conducted a CEQA review before adopting the initiative. The Court of Appeal ruled in favor of the Jobs & Small Business Alliance, but the Supreme Court reversed. In so doing, the court reminded the plaintiffs that CEQA is just a law and its procedures must sometimes be balanced against procedures contained in other state laws. The ruling may encourage Wal-Mart to end-run CEQA-based opposition in the future by going to the ballot, at least when project approvals depend on legislative, rather than quasi-judicial, approvals. In large part, the ruling turned on the Supreme Court's interpretation of Elections Code Section 9214, which lays out the procedure for how local governments must deal with initiatives. Under the code, when presented with a valid set of signature petitions, a city council or county board of supervisors has three options – place the measure on the ballot, adopt it as is, or order a report examining the initiative's impacts, which must be produced within 30 days. This report is typically known as a "9212 Report," after the Elections Code section that lays out this option. The Supreme Court said that the Elections Code and CEQA conflict, for two reasons. First, CEQA review cannot be conducted in the time frame permitted under the Elections Code. "Direction adoption would be severely curtailed and, for many initiatives, no longer an option, because it would be impossible for cities to comply with both CEQA and the section 9214 deadlines," Corrigan wrote. Even if the time problem could be solved, Corrigan added, a CEQA review would be pointless becuase 9214 requires that a city or county choosing direct adoption must adopt the initiative "without alteration". " ities would be powerless to reject the proposed project or to require alterations in the project that would lessen its environmental impact, no matter what the review showed." The court also had to assess whether the Elections Code trumps CEQA, since both are statutes. (The direction-adoption option is not enshrined in the Constitution but was created by the legislature.) Reviewing the history of attempts to subject initiatives to CEQA via legislation – all of which have failed – the Supreme Court concluded that the it is clearly not the legislative intent to subject initiatives to environmental review. In adopting the 9212 report law in 1987, for example, the legislature "enacted the bill that gave local governments the option of obtaining an abbreviated review to be completed within the short time frame required for action on initiatives" and "specifically rejected the bill that would have required CEQA review before a land use initiative could be directly adopted or submitted to voters."  Finally, the Supreme Court addressed the question of whether direct adoption without CEQA review "offends public policy" – a valid topic for analysis, according to Corrigan, if legislative intent is unclear. The court concluded this interpretation does not offend public policy. "Appellants warn that developers could potentially use the initiative process to evade CEQA review, and that direction adoption by a friendly city council could be pursued as a way to avoid even the need for an election," Corrigan wrote. Referencing Associated Home Builders etc., Inc., v. City of Livermore , 18 Cal.3d 582 (1976), which found that state housing law trumps a local growth-control initiative, she added; "Of course, the initiative powers may also be used to thwart development. However, these concerns are appropriately addressed by the Legislature. The process itself is neutral." And, she noted, if local voters dislike the direct adoption of an initiative, they can overturn it via initiative. The Case: Tuolomne Jobs & Small Business Alliance v. Superior Court of Tuolomne County , No. S207173 (filed August 7, 2014), at http://www.courts.ca.gov/opinions/documents/S207173.PDF.

In a sweeping new set of recommendations, the Governor's Office of Planning & Research has proposed that traffic congestion no longer be considered a significant environmental impact under the California Environmental Quality Act, and that expanded roadways in congested areas be assessed for possible growth-inducing impacts. In a draft document released late Wednesday at http://www.opr.ca.gov/s_sb743.php (PDF document: http://bit.ly/1kOofPD), OPR's long-awaited white paper recommends amendments to the CEQA Guidelines to replace the "level of service" traffic congestion standard with a "vehicle miles traveled" standard in order to tether CEQA analysis more closely to other state goals, especially the greenhouse gas emissions reduction goals contained in AB 32, the state's climate change law. Among other things, OPR appears to be trying to make sure the CEQA/traffic tail does not wag the planning dog � as so often appears to happen in California. " ddressing congestion requires public agencies to balance many factors, including fiscal, health, environmental, and other quality of life concerns," OPR wrote. "Such balancing is more appropriate in the planning context where agency decisions typically receive deference." This is in keeping with a line of CEQA cases going back at least to Friends of Goleta Valley in 1990 (http://resources.ca.gov/ceqa/cases/1990/goleta_valley_123190.html), in which the California Supreme Court said that alternatives analysis under CEQA should not be used to re-fight land use decisions made in a general plan. OPR also recommends that anything above the regional VMT average should be considered a significant impact and that the approach should be phased in, applying to areas around transit stops first and all locations later. OPR's long-awaited recommendations came five weeks after the deadline called for in SB 743, last year's CEQA reform law, which called upon the agency to examine alternatives to LOS within the CEQA context. If adopted, the recommendations could have widespread implications for how traffic is mitigated under CEQA and the leverage local governments have over developers in dealing with traffic congestion issues. The recommendations will now be subject to public comment -- comments are due October 10 -- before formal amendments to the CEQA Guidelines are made. The document is sure to generate widespread discussion among those involved in planning and development in California. The OPR paper is sweeping because it challenges head-on the longstanding view that the primary goal of traffic analysis under CEQA is to identify and relieve traffic congestion � or, as the paper calls it, "automobile delay". "By focusing solely on delay, environmental studies typically required projects to build bigger roads and intersections as �mitigation' for traffic impacts," the paper states. The OPR paper proposes a news section to the CEQA Guidelines, Section 15064.3, which clarifies that "the primary consideration, in an environmental analysis, regarding transportation is the amount and distance that a project might cause people to drive" (italics mine), rather than the amount of automobile delay. Specifically, the proposal calls for a focus on vehicle miles traveled and trip generation. VMT and the Regional Average In proposing the shift away from traffic congestion, OPR is essentially proposing a shift toward vehicle miles traveled, or VMT, as the traffic standard to use in CEQA analysis. This is not surprising � OPR had given every indication that this is would be the direction � but this week's recommendations spell out in more detail how OPR imagines this would work. Although under SB 743 OPR cannot specify mandatory significance thresholds, the paper does make some recommendations about how lead agencies might set those thresholds. Among OPR's recommendations: Projects that generate greater than the regional average VMT might be considered significant. This standard would likely tie CEQA traffic analysis to the reduction in per-capita VMT called for in each region's Sustainable Communities Strategy under SB 375. Projects close to transit stops might be considered below the significance threshold. General plans and specific plans that conform with the region's Sustainable Communities Strategy might be considered below the significance threshold. Growth-Inducing Impacts Almost as bold as the proposal to switch to a VMT standard is OPR's suggestion that expanded roadways in congested areas � currently often a mitigation under CEQA � should actually be examined as a possible growth-inducing impact under CEQA. Relying heavily on a paper prepared for the Air Resources Board by Susan Handy of UC Davis and Marlon Boarnet of USC (see http://bit.ly/1opM6ER), OPR concluded that "adding new traffic lanes in areas subject to congestion tends to lead to more people driving further distances" and thus induces more travel. Thus, the OPR proposal would actually require lead agencies examine the growth-inducing impacts of adding new roadway capacity in congested areas. Dealing With Traffic Congestion Apparently anticipating pushback from local agencies accustomed to using CEQA to gain leverage over developers on traffic improvements, OPR addresses the question of dealing with traffic congestion in several ways: The proposed CEQA Guidelines amendments clarify that local safety impacts are appropriate for CEQA analysis. This would appear to be partly in response to concerns from Caltrans about the dangers of queuing at freeway onramps and offramps. However, traffic safety has not traditionally been subject to CEQA analysis. OPR said that the actual environmental impacts of traffic congestion � including noise and air quality � should continue to be analyzed under CEQA. However, mitigation for these impacts should be crafted to solve the specific noise and air quality problems, not traffic congestion problems. OPR clarified that local governments would still be free to analyze congestion impacts � just not within the context of CEQA. "Many jurisdictions have level of service standards in their general plans, zoning codes, and fee programs," OPR wrote. "These proposed Guidelines would not affect those uses of levels of service." Local governments, however, can be expected to push back with the idea that a local plan or ordinance will not give them as much leverage over developers as a state law like CEQA. In many cases, cities have traffic impact fees and then impose additional traffic mitigations on top of that as a result of traffic analysis under CEQA. Phase-In Many cities around the state had expressed concern about a sudden switchover from one standard to another. For this reason, OPR proposed the following phase-in: The new standard will not be retroactive: Approved projects will be subject to mitigations extracted under the old standard. The new standard will only apply to areas around transit stops (as defined in state law). Local governments may apply the standard to other areas on an "opt-in" basis at first. The standard will apply statewide as of January 1, 2016.

Fresh from its major Atherton win (see Bill Fulton's writeup at http://www.cp-dr.com/articles/node-3540), the High-Speed Rail Authority won another key ruling July 31 that upheld the validity of its authorization to issue bonds for the project and said the project's preliminary funding plan did not need to be redone. Presiding Justice Vance Raye of the Third District Court of Appeal issued an opinion that started ominously, though it quickly narrowed its scope to something the court could approve: "Substantial legal questions loom in the trial court as to whether the high-speed rail project the California High-Speed Rail Authority... seeks to build is the project approved by the voters in 2008. Substantial financial and environmental questions remain to be answered... But those questions are not before us in these validation and mandamus proceedings." Joined by Justices Ronald Robie and M. Kathleen Butz, Justice Raye wrote that the necessary findings were appropriately made to support issuance of the high-speed rail project bonds under 2008's statewide Proposition 1A, and the preliminary funding plan created under 1A had already "served its purpose" of providing guidance to the Legislature -- hence could not be undone nor redone. The 49-page appellate opinion is helpfully thorough with procedural history. Raye's opinion reversed November 2013 rulings by Sacramento Superior Court Judge Michael P. Kenny. Kenny's Superior Court orders had invalidated the bonds and ordered the High-Speed Rail Authority to rescind and redo its preliminary funding plan -- meanwhile preventing issuance of the bonds. Raye found no basis for Kenny's "highly unusual scrutiny of the Finance Committee's determination that it is 'necessary or desirable' to grant the Authority's request to authorize the issuance of bonds." He wrote that Kenny expected too much of the 1A-appointed Finance Committee, whereas Raye found nothing that required the Finance Committee to make factual findings, nor to hold a public hearing. He wrote that it was not the business of the trial judge to decide if the project was "necessary or desirable" because the Finance Committee had "exceptionally broad discretion" to make that decision. In Raye's view, too-close judicial scrutiny of such matters was not only unwarranted but also began to create a separation of powers problem. The appellate opinion offered leeway for the tendency of large public works projects to change after their approval, notably citing a ruling in East Bay Municipal Utility District v. Sindelar (1971), 16 Cal.App.3d 910, that validated a late additional issue of bonds under an approval granted by voters years before for a "water development project" although the construction work was essentially done and the expected 10-year project duration had gone by. As to the preliminary funding plan, Raye's decision found the challenge to it "was too late to have any practical effect," while "it is too early to challenge a yet-to-be approved final funding plan" as further required by Proposition 1A. It found the rail authority had no "clear and present ministerial duty to redo the preliminary funding plan" at a point after the Legislature had already appropriated funds to be raised by the bonds. And it found that Judge Kenny properly rejected a late-raised request to undo the appropriation decision, in part on separation of powers grounds. The LA Times writes up the case and its significance at http://lat.ms/1tRpccu and Streetsblog LA discusses the updated state of high-speed rail funding at http://bit.ly/1v2TY3C. Streetsblog says the decision "has removed the most significant legal impediment" to the high-speed rail project. The online docket is at http://bit.ly/1p74WAL. The case is California High-Speed Rail Authority v. Superior Court , No. C075668 and the decision is at http://www.courts.ca.gov/opinions/documents/C075668.PDF. The appeal followed from two companion cases in Sacramento Superior Court, both titled there as California High-Speed Rail Authority v. Tos , with case numbers 34-2011-00113919 and 34-2013-00140689. Online indices for the cases can still be viewed free at https://services.saccourt.ca.gov/PublicCaseAccess/ but the case documents at trial court level are subject to the Sacramento County Superior Court's new download fees.

California's Fourth Appellate District on Friday struck down a special hotel tax that San Diego hotel operators had willingly imposed on themselves, as members of an unusually defined special district, to raise money for the city's convention center expansion. The court ruled that the tax required a two-thirds citywide popular vote for approval. Under Proposition 13 as broadened in 1996 by Proposition 218, special taxes must be approved by a two-thirds vote of "the qualified electors" of the affected district, also expressed as "the electorate" of the district. A detailed opinion by Justice Cynthia Aaron, joined by Justices Judith McConnell and Terry O'Rourke, found the City of San Diego did not get past that requirement when it enacted an ordinance in November 2011 to define a special "electorate" by reference to a special Convention Center Facilities District (CCFD). Under the ordinance, the special district consisted of hotel properties throughout the city; its voters were described as being the owners and lessees of properties with hotels on them. The San Diego Union-Tribune , reporting on the decision, said hotel operators had "eagerly embraced" the tax in hopes that the convention center expansion would increase overall hotel stays, amid concern that the annual San Diego Comic-Con was outgrowing its venue. See http://bit.ly/1uhsEdG. Aaron's opinion found that both Proposition 13 and the city charter required special taxes to be approved by two-thirds of the "qualified electors," who, she wrote, are the same as the registered voters for the geographic area affected -- i.e., in this case, the whole city. She separately ruled that the subset of landowners and lessees did not "comprise a proper 'electorate'," citing in part to Greene v. Marin County Flood Control and Water Conservation Dist. (2010) 49 Cal.4th 277, 297 for the rule that property qualifications are not permitted in elections on special taxes. Aaron cited Neilson v. City of California City (2005), 133 Cal.App.4th 1296, for the rule that "qualified electors" are registered voters under Proposition 13. She additionally followed Rider v. County of San Diego (1991) 1 Cal.4th 1, which blocked a prior San Diego attempt to raise money for public works -- at that time, for "justice facilities" -- by inviting city voters to approve a supplemental sales tax by a majority vote. The Rider court found a two-thirds vote was needed instead. The new San Diego CCFD ordinance had borrowed language and approaches from the Mello-Roos Act, which does allow a vote of landowners to approve taxes for community facilities in districts that do not affect residential property; San Diego's ordinance described hotel use as other than residential. But the opinion said the Legislature's relevant interpretation of Proposition 13 dates from 1979 and trumps the 1986 amendment to the Mello-Roos Act that the city relied on. Aaron wrote that the Legislature, in enacting Mello-Roos, showed no sign of having considered who were "qualified electors" in the context of Proposition 13. She wrote further that, in any case, Proposition 13's careful anti-loophole provisions, at article XIII A, § 4, requires a two-thirds vote of the actual registered voters, and " statute cannot trump the Constitution". Further, the court found it unfair that hotel landowners or lessees would be viewed as the only parties burdened by the tax and hence entitled to control its use, because guests of hotels would be affected too. San Diego activist attorney Cory Briggs represented one of the challengers, San Diegans for Open Government, which at https://www.facebook.com/sandiegansforopengovernment/info states support for "responsible and equitable environmental development" and government transparency. Briggs called the ruling "a huge victory for the taxpayers and the voters" in comments reported by the KPBS news station on August 1. The station quoted Mayor Kevin Faulconer as highlighting economic advantages of the Convention Center expansion that the tax was meant to fund, while former mayor Jerry Sanders, now with the Chamber of Commerce, called it "a great loss for our city." KPBS quoted a spokesman for the City Attorney's office, Michael Giorgino, as saying, "As we stated in the 2012 briefing...the most reliable way to impose this tax is to place it on the general ballot... Two and a half years later, it still is." With this, KPBS linked to a document dated February 1, 2012 on the San Diego City Attorney's site at http://www.sandiego.gov/cityattorney/pdf/2012/120201boundaries.pdf saying that creation of the CCFD "borrows, in part, from a similar structure used by the City of San Jose in 2010 to finance its convention center project," and that "Lawyers within our office have differing opinions" on the plan's legality. It looked toward the city-filed validation action that was the underlying case in last week's decision. As of the KPBS report, it was not clear if the city would appeal to the state Supreme Court. See http://bit.ly/1qOniUV. The case is City of San Diego v. Shapiro , No. D063997, at http://www.courts.ca.gov/opinions/documents/D063997.PDF. (In a separate matter, the City Attorney's office on July 10, announced it had defeated an effort by Briggs to enjoin the use of "over $1 million raised by 18 San Diego Business Improvement Districts" for events and street amenities. See http://www.sandiego.gov/cityattorney/pdf/news/2014/nr140710.pdf.)

The Santa Ynez Valley in Southern California brands itself as bucolic wine country, a mix between grape-covered hills and Old West charm. The Chamber of Commerce touts the hospitality and diversity of the valley's few thousand residents, but one thing that isn't mentioned in the Chamber's materials is the Chumash Casino Resort, a business run by the government of the Santa Ynez Band of Chumash Indians that made a reported $366 million in revenue in 2008. The government of the Tribe, which claims 249 on-reservation members, is attempting to acquire relatively autonomous federal trust status for a greater proportion of the Tribe's historic land. The Tribe's representatives believe that they have the finances and a recent U.S. Supreme Court decision in their favor. The local government and state officials, however, have allied themselves against the proposal for fear that added Tribal land development may upset the power balance in the valley. The Santa Ynez Band of Chumash Indians have been given claim to 15,000 acres of Tribal Consolidation Area – that is, title to land claims too small or of too obscure title in their individualities to be apportioned to any individual Tribal member. If the Tribe acquires full fee-simple title to property in this area, it can apply to have it taken into trust. Within the Tribal Consolidation Area, the Tribal government has purchased and is seeking trust status for a 1400-acre property on Highway 154 near Solvang. The property is a subdevelopment of the former Fess Parker vineyards called "Camp 4," currently zoned for agriculture and partly planted in grape vines. (See http://www.kitawines.com/vineyard/.) The Tribe's announced plan for the land is to develop housing for members. Many non-Native residents and state and county officials, however, are worried that the land could be used for economic development projects outside the reach of taxation or regulation. (Local opponents' sites include http://polosyv.org and http://www.syvconcernedcitizens.com/.) A long-disputed claim Tribal developments can avoid state and local regulations because tribes are outside states' jurisdiction. Native American tribes are recognized by the federal government as separate sovereigns, often with treaty rights recognized and signed by various U.S. Presidents over the years. The Santa Ynez Reservation was established in 1901 and has been the site and focus of litigation ever since. (For an introduction to prior Chumash history see http://www.santaynezchumash.org/history.html.) Revenues from the Chumash-owned casino are a particular thorn in the side for local non-Indians who perceive the casino as both a competitor for tourist dollars and a magnet for crime. A California compact with the Indian reservations within the state to regulate tribal gaming was approved by the Bureau of Indian Affairs in 2000. It provides the framework to define what kinds of gaming are allowed on reservations such as the Chumash's and how the revenues may be used. The casino business has been good for the Chumash, seeing as their reservation is only 125 miles from Los Angeles. The Tribe has been able to purchase land from Santa Barbara County and various landowners that had fallen out of Tribal authority 80 years ago. Now the Tribe is hoping to use either an administrative BIA process or a Congressional bill introduced on its behalf (HR 3313) to turn this purchased land into Federal land held in trust for the Tribe. Under trust status, the federal government would hold legal title, unattachable to tribal mortgage or debt, explicitly for the benefit of the entire Tribe and outside the state regulatory framework. "Trust" land has been held to be more purely "Indian Country" than land held by a tribe in fee simple. So state officials are concerned that if the land becomes trust land they will no longer be able to keep the Tribe from using it however it wishes – possibly building high-rise or high-density apartments against local zoning ordinances, or even constructing casino expansions. Although HR 3313 explicitly excludes gaming from the acres at issue, the tribe's opponents are worried that this express statement could be overridden by later law once the land is out of state hands. Andi Culbertson, a Santa Ynez Valley resident and land use lawyer, said there is "hardly a necessity for housing" for those Tribal members who live in the Valley. (How many are full-time residents is disputed.) Culbertson expresses concern that once the land is solely in Tribal hands, "they can build anything." In order to to stave off this particular eventuality, Santa Barbara County has chosen not to negotiate release from local to federal control of the 1400-acre plot at issue – confident that HR 3313 will not pass Congress. The Chumash Tribe has proposed to make payments to the state and county in lieu of taxes. (Tribes do not pay taxes to states, as sovereigns of equal standing.) The Tribe has also offered to limit its tribal sovereignty by allowing County participation in the planning process. "In a perfect world, tribes and their counties would work out some agreed-upon system similar to currently existing county LAFCO processes," said Sam Cohen, the Tribal spokesman and a lawyer for the Santa Ynez Band. According to him, such a system would allow for "counties to get the early warning they desire and tribes and counties could reach agreement as to some of the jurisdictional conflicts." However, Santa Barbara County has successfully created an impasse where Congress, at the suggestion of the District's Rep. Lois Capps (D-Santa Barbara) is waiting to see a local agreement that the County is unwilling to undertake. (The sponsor of HR 3313 is not Capps, but Rep. Doug LaMalfa, R-Richvale. See http://lat.ms/1nJcrN1.) At the same time, the office of the California Attorney General has taken a generally negative view of the fee-to-trust process, issuing comments to be attached to public records of various California tribes' fee-to-trust applications that attack "the very foundation of the federal statutes authorizing land in trust acquisitions, fostering discord and misunderstanding between tribal Nations and the State of California" in the words of Robert Smith, chair of the Pala Band of Mission Indians. The Attorney General's office points to the tribes' lack of interest in agreeing to waivers that the AG has sought. These would provide that fee-to-trust lands would "only serve on-reservation uses and that the Tribe waive its sovereign immunity to allow for enforcement of that condition." Such commitments would presumably make for neighborliness but are not legal requirements for tribal action. The opposition to the Chumash plans comes from a variety of sources, but focuses on a few key issues summed up by the California Coastal Protection Network. The Network notes that although 100% of the 111 California fee-to-trust applications to the Pacific Region of the Bureau of Indian Affairs from 2001-2011 were approved, those each averaged under 100 acres, far smaller than the Chumash Tribe's application for 1,400 acres. The Coastal Protection Network also decries the vagueness of the Tribe's offered Cooperative Agreement, saying that it "did not contain an explicit project description for uses on the 1400 acres, but indicated that it would include housing and unspecified ‘economic development'." By the Network's reasoning, a larger project such as Camp 4 would call for disclosure of more complex plans than a hundred-acre plot in a less economically valuable part of California. But the Tribe is reading the guidelines for fee-to-trust applications as more permissive than what opponents would like to see. Tribal land is not subject to the California Environmental Quality Act (CEQA). While this would seemingly allow for massive development opportunities, in practice tribal authorities follow the spirit, if not the letter, of local environmental quality acts. This is partly because tribes are still subject to federal environmental standards. Also because tribes, which often need to make the best of reservation areas that are only a fraction of their original suzerainty, have a political interest in sustaining the land they own. The trend of tribal action generally aside, Culbertson notes that "It's a developer's fondest dream to be able to escape all state regulations," and the Camp 4 development would do precisely that. Culbertson emphasizes that the county's tax base and regulatory control would be weakened by the fee-to-trust transfer. Santa Barbara County is currently suing the Tribe over a breach of the Williamson Act (an agricultural property tax break for conservation purposes), claiming that the Tribe never filed the application on which it has been relying for tax breaks, instead relying on the former owners' application. Cohen, representing the tribe, claims that the suit is largely procedural and says he believes the assertion is largely "that we haven't done it fast enough." (See http://bit.ly/1pl6plF.) The comment process on the Tribe's Environmental Assessment for the fee-to-trust plan, filed with the BIA under the federal National Environmental Policy Act (NEPA), closed on July 14. (See http://www.chumashea.com/.) A precedent for others? While the claims ultimately come down to mutual distrust and glares across the state/federal divide, recent changes in state and federal law raise the stakes for the Santa Ynez Valley dispute and may turn its outcome into a precedent. California's worsening drought has exacerbated water ownership issues throughout the state's water basins. HR 3313, the Congressional bill to authorize the land's transfer to trust status, attempts to bifurcate the tribe's sovereignty claim from its water issues. It explicitly would not "affect any water right of the Tribe in existence before the date of the enactment of this Act." (For the text and status see https://beta.congress.gov/bill/113th-congress/house-bill/3313.) Despite this legislative buck-passing, legal scholars believe that because the Reservation was created in 1891 – and because the creation of the Reservation reserved rights inherent in the Tribe since pre-contact – the Chumash Tribe has a right to water in a first-in-time system dating back to at least the 19th century and perhaps time immemorial. Although this right is ostensibly only to Zanja de Cota Creek, the creek has since dried up and its connected groundwater can be employed by the Tribe to fulfill the purposes of an Indian reservation, according to a related Ninth Circuit case concerning the Pyramid Lake Paiute Tribe in Nevada, United States v. Orr Water Ditch Co. , 42 ELR 20252 (9th Cir., 2001). In a 2013 article studying the Santa Ynez Tribe's case in the West Northwest Journal of Environmental Law & Policy , Joanna "Joey" Meldrum (then a new UC-Hastings law graduate; now a land use attorney with Holland & Knight) reflected a widely held view in arguing that, under locally applicable law, "the Tribe should have the right to withdraw as much groundwater as is necessary for the Reservation and its people to survive and prosper," with the Tribe able to receive much judicial deference. (See http://bit.ly/1nMEAV6.) However, Cohen has downplayed these rights on land outside the reservation proper, saying the priority date on newly-minted Trust land will be "the date that the land goes into trust. Our 1400-acre parcel has a priority date of whenever the land is turned in to the federal government," presumably when the Fee-to-Trust application is approved and title is quieted in late 2014. The Tribe's dormant opportunity to control water in the Santa Ynez Valley only allows for on-reservation water usage, but it still may give the Tribe the opportunity to control further development, an opportunity that state and local officials perhaps fear. The state of California's concerns over losing water rights and control over development may be sharpened by a May 2014 U.S. Supreme Court decision, Michigan vs. Bay Mills Indian Community , in which the Court held 5-4 that the state of Michigan could not issue an injunction against Tribal activity (in the Bay Mills case, the operation of a gaming facility) on non-Tribal land. (See http://bit.ly/1nOfB2c for a SCOTUSBlog analysis.) This holding, which may yet be narrowed by further holdings, would seem to allow Tribal governments to countermand any orders state courts might issue to cease development, even on non-Tribal land. The chance to build first and make agreements with the state later would be an enormous opportunity for tribes to operate on an equal footing with states and may even – if Bay Mills is held broadly – reverse some of the many state encroachments on tribal sovereignty that have marked the history of Indian country. The current standoff between the Santa Ynez Band of Chumash Indians and the non-Native regulatory powers is, in one sense, a local power struggle determining what the base of economic power will be in this hilly Pacific wine country. In another sense, the outcome will determine how much strength tribes will have throughout California in proposing new developments, including housing and businesses. If the Chumash are able to successfully maintain their rights to land and water they may be able to exert greater control in the Valley and set a precedent allowing for tribal sovereignty-based engines of economic development to sprout throughout rural California. Tribal claims to water and to freedom from state judicial interference are looked at – either enthusiastically or skeptically – throughout the state, and threats of litigation loom over the current-day impasse in negotiation. The current power balance in the Santa Ynez Valley in particular, and in corresponding situations throughout California, has longstanding beneficiaries. Historically disadvantaged groups such as the now-powerful Santa Ynez Band may be looking forward to disrupting those interests through their own avenues of economic growth in the near future. Asher Kohn is a writer and law school graduate based in the Bay Area. He writes about land use and disuse. See www.asherjkohn.com.

The Governor's Office of Planning & Research is a month late in issuing its final recommendation on whether to replace "level of service" as the measurement of significant transportation impacts in transit priority areas under the California Environmental Quality Act. But there's not much mystery: OPR has sent clear signals that it is going to propose replacing LOS with vehicle miles traveled, or VMT. A VMT standard would get California out from under constant use of CEQA to widen roads and facilitate auto travel – a strange environmental outcome if ever there was one – and it would align the CEQA Guidelines with state policy, especially AB 32, the state's greenhouse-gas emissions reduction law, which essentially requires a reduction in overall driving. But it would upend the longstanding practice of traffic engineers in practically every city and county in California. It's hard to know how localities would actually seek to translate a VMT standard into day-to-day practice in reviewing both plans and projects – or whether they would continue to use outside transit areas our outside the CEQA context. SB 743 required OPR to come up with an alternative standard by July 1 – at least for transit priority areas. OPR's December "preliminary evaluation"(see http://www.opr.ca.gov/docs/PreliminaryEvaluationTransportationMetrics.pdf) prominently considered switching over to the "Vehicle Miles Traveled" (VMT) standard, saying travel distances were easier to predict than congestion levels and that mitigation approaches focused on reducing VMT would do more to promote bicycle, foot and mass transit methods of travel. The document also invited discussion of other standards: Automobile Trips Generated, Multi-Modal Level of Service (including LOS ratings for transit, walking and biking), Fuel Use, and Motor Vehicle Hours Traveled. And perhaps most important, the December document suggested that some geographical areas might be under a "presumption of less than significant transportation impact" category if those areas are already well served by transit. All this strikes at the very heart of traffic analysis as it has been conducted in California at least since the passage of the Congestion Management Act in the early ‘90s, a law that more or less requires CEQA analyses to take traffic congestion into account. (http://www.cp-dr.com/articles/node-3404.) Obviously, free-flowing traffic can, under some circumstances, reduce air pollution – meaning that, counter-intuitive as it seems, expanding road capacity can improve environmental conditions. But the truth of the matter is that CEQA analyses rarely make the connection between traffic congestion and any type of environmental harm. Most cities and counties simply adopt some particular LOS standard as a significance threshold that requires an environmental impact report. And the real driver of both time and expense in the typical EIR is the traffic analysis, which hogs financial resources compared to other topics. This, of course, makes all development projects more expensive and time-consuming and sometimes has put infill development at a disadvantage. Maybe most significant is how all the people involved in CEQA project review – traffic modelers most of all – have come to regard CEQA and LOS-based traffic analysis as so intertwined that they can't be separated out. CEQA provides a lot of the leverage that localities in California use to get developers to cough up traffic improvements. After all, if as a planner you frame conditions for an approval so they require a developer to do something as a mitigation under CEQA, the developer and everyone else concerned can be held accountable under a state law that lends itself to easy litigation. The planners and modelers feel like they have a lot of leverage; and the neighbors are confident that you're trying to solve the congestion problem. If you try to require developers to pay for traffic improvements outside the context of CEQA, you have to rely on your own … policy, which can be … changed, and not so easily … litigated. The whole thing makes everybody pretty uncomfortable. But there comes a point in an infill context where LOS no longer makes sense. At its core, the LOS standard drives a congestion analysis that boils down to – oversimplifying here, but not much – "How many cycles of a red light does a typical motorist have to wait through before they clear the intersection?" (Congestion on road segments is also analyzed, but that's not nearly as big a problem.) If your goal is to keep traffic flowing no matter how much traffic there is, you'll try two different types of mitigation measures. First, you'll expand the overall roadway capacity. And then, second, you'll fiddle around the edges as much as possible by adding more left-turn lanes and so forth. And if none of that works, then you'll adopt a statement of overriding consideration, saying you simply can't fix the traffic congestion. And, oddly, that's another CEQA security blanket for a lot of localities in California, because it gives them an "out" under state law that is hard to challenge in court. Letting traffic congestion exist outside the context of CEQA makes a lot of people very uncomfortable. But we are rapidly reaching the point in many California cities where there is simply no way to mitigate your way out of the problem by building more traffic improvements. Traffic congestion is so bad that statements of overriding consideration are becoming more common. So, not surprisingly, a few leading-edge cities are beating the state to the punch by moving away from LOS – San Francisco and San Jose especially. (See http://www.spur.org/blog/2014-06-26/can-new-law-free-cities-car-oriented-development.) More are likely to follow, especially if the state adopts an alternative standard. That doesn't mean that local traffic modelers won't do congestion analysis. There's too much pressure on them to ignore congestion completely. They'll just do it outside the CEQA context. And especially at the plan level, it will be difficult to differentiate between transit priority areas and other locations, as the plans may straddle those boundaries. It'll be an interesting test of the power of non-CEQA conditions of approval to see whether localities can extract congestion improvements from developers outside of CEQA. (After all, this somehow happens in every other state.) The more interesting question may be how localities interpret and implement a VMT approach. You can see this working way better at the plan level than the project level – where you can rejigger the land uses (and maybe create more mixed-use) to drop VMT below a level of significance. But how do you do that at the project level? You run the risk of re-fighting the plan's land uses, something the courts have taken pains to discourage.  More likely, a VMT standard will morph at the local level into something that kind of looks like a multi-modal LOS. In essence, cities will conclude that VMT for a particular project is high because everybody is forced to drive. Unable to solve the congestion problem either, they will seek to reduce both VMT and congestion by getting developers to build or pay for other transportation improvements, especially transit and the pedestrian connections required to connect the project to the transit lines. This won't work everywhere; as SPUR pointed out in the article linked to above, smaller cities and rural areas may still use the LOS standard. And it won't be easy, because a significant increase in transit capacity requires huge capital investments far behind the ability of individual developers to pay and it may require them to commit to long-term operation subsidies, which are hard to enforce.  But with VMT becoming the preferred approach to assessing transportation effects of new projects, we may see transportation planning become more flexible, and more genuinely linked to environmental protection, as it moves away from the special constraints of the CEQA process.

CEQA's future has been in holding patterns across all California's branches of government this summer. But while big things are expected any day in the administrative or judicial branch, CEQA is a sore and sour subject in the Legislature. In a way, this isn't surprising. It's always been difficult to change CEQA in the legislature. Most of the action has always been in the courts – perhaps inevitable for such a litigation-driven law – and through the ever-expanding CEQA Guidelines. But it's an anticlimax given the high hopes that Senate leader Darrell Steinberg, D-Sacramento, and others have placed on possible CEQA reform in the last couple of years. The air went out of CEQA reform efforts last year (see http://www.cp-dr.com/articles/node-3437) and this year has been a year of diminished legislative prospects. In the administrative branch, as Bill Fulton discusses in today's Insight commentary, the Office of Planning and Research (OPR) is nearing completion of an updated alternative to the congestion-based Level of Service (LOS) standard for traffic impact assessments. The new rules, expected to focus on Vehicle Miles Traveled (VMT), may ease the criteria for approving new freestanding and infill construction projects and will certainly shift the tensions that shape project approvals. OPR is also incubating broader revisions to the CEQA Guidelines. See http://www.opr.ca.gov/m_ceqa.php. In the judicial branch, the California Supreme Court has a towering CEQA backlog of seven cases, several of them major: Most recently, on July 9, 2014, the high court agreed to hear an appeal of the March 2014 ruling on the proposed Newhall Ranch development, Center for Biological Diversity v. Department of Fish & Wildlife , S217763. The partially published March decision by the Second District Court of Appeal (No. B245141) included a densely technical unpublished discussion of greenhouse gas (GHG) reduction goals. As discussed previously at http://www.cp-dr.com/articles/node-3505, Thomas Henry and Bao Vu of the Stoel Rives firm wrote a technically careful blog post at http://bit.ly/1hxBDWz comparing standards for GHG reduction that were set in the case to those apparently set by the recent AB 32 scoping plan update, suggesting that the scoping plan might be more lenient. The Miller Starr Regalia blog has more details on the grant of review at http://bit.ly/U9hhYj. Although the issues addressed are major, David Pettit, a senior attorney with the National Resources Defense Council (NRDC) said the case was also "pretty fact-bound," and so "I don't really see the case as being a blockbuster." The court heard oral argument May 28, 2014, in Tuolumne Jobs & Small Business Alliance v. Superior Court , S207173, on whether CEQA review is still required when a local city council or board of supervisors receives signatures on a ballot measure supporting a project and elects to adopt the project as is rather than submit it to a (potentially costly) special election. See http://www.cp-dr.com/articles/node-3506. This is a longstanding unresolved issue, as local government actions are subject to CEQA and initiatives aren't. So the question is, which type of action is the local government taking when adopting initiative language? The court agreed last November to review California Building Industry Association v. Bay Area Air Quality Management District , S213478, otherwise known as the "CEQA in reverse" case, considering whether developers must respond to the potential future effects of environmental hazards on their projects. See http://www.cp-dr.com/articles/node-3460. The extremely significant case of Berkeley Hillside Preservation v. City of Berkeley , S201116, on "unusual circumstances" exceptions to the infill exemption, was accepted for review in May 2012 and still has not gone to oral argument. See http://www.cp-dr.com/articles/node-3314. On July 9, 2014 the same day it accepted the Newhall Ranch case, the court granted review of the Santa Cruz County rodeo case, Citizens for Environmental Responsibility v. 14th District Agricultural Association (Stars of Justice) , S218240. It immediately deferred briefing on the case pending decision of the categorical exemption issue in Berkeley Hillside . See http://www.cp-dr.com/articles/node-3465 on the underlying appellate decision and http://www.courts.ca.gov/documents/ws070714.pdf for the court's account of its action. City of San Diego v. Board of Trustees of CSU , S199557, accepted in April 2012, is also awaiting both argument and decision. The case is discussed briefly at http://www.cp-dr.com/articles/node-3314. Review was granted in January 2014 for Friends of the College of San Mateo Gardens v. San Mateo County Community College District , S214061. For a discussion from the Remy Moose Manley environmental law firm see http://bit.ly/UDTdwW. (Online dockets for all California Supreme Court cases, with links to the underlying appellate decisions, can be found via search by case number at http://appellatecases.courtinfo.ca.gov/search.cfm?dist=0. The Court's pending issues summary, which it replaces weekly, currently includes the court's statement of issues presented in all the above matters except for the rodeo case. See http://www.courts.ca.gov/13648.htm.) Anthony Samson, a former CEQA litigator and now a lobbyist with the California Chamber of Commerce, expressed interest (though not exactly agreement) regarding a news analysis, posted by Erin Coe of Law360, that in March 2013 was already suggesting the California Supreme Court may be frustrated with legislative inaction on CEQA and, in Samson's paraphrase, "appears to be taking it into its own hands based solely on the sheer number of CEQA cases pending before the Supreme Court today." (See http://bit.ly/1qGqKWw and http://bit.ly/1psYWOO.) If anything, the court's CEQA ambition, and the potential significance of its rulings, have only grown since then. Stalemate in the Legislature In the Legislature, on the other hand, meaningful CEQA legislation has slowed since the 2013 resignation of Sen. Michael Rubio, D-Bakersfield, who led major attempts at a CEQA procedural overhaul as chair of the Senate Environmental Quality Committee. (See http://www.cp-dr.com/articles/node-3356.) This year's primary attempt to change CEQA procedure was SB 1451 (http://bit.ly/1p8udwb), to narrow the procedural rights of objectors to projects, principally on what bill proponents called "late hits" – last-minute presentations of comments and evidence. That bill was shelved in early May. Remaining CEQA proposals in this session have more specific focuses, on Native American cultural resources (AB 52) and the Tesla battery factory (SB 1309, though the bill itself has lagged procedurally). Queries to members of the Legislature's CEQA community about next steps or lessons learned after the defeat of SB 1451 got desultory responses over the last several weeks. One senior lobbyist who had dealt with the bill answered, "I don't know what else there is to say about it," and recommended asking someone else. SB 1451 itself has been convincingly dead since it was pulled from a State Senate Judiciary Committee agenda in early May. With Sens. Jerry Hill, D-San Mateo, and Richard Roth, D-Riverside as principal authors, the measure would have tightened procedural rules to bar critics of a project from presenting new grounds for an allegation of noncompliance with CEQA after the close of the public comment period. Exceptions would have applied if there was no public comment period, or if the late-presented grounds previously "were not known and could not have been known with the exercise of reasonable diligence", a phrase borrowed from CEQA Guidelines §15162. (The Senate Environmental Quality and Judiciary committee analyses at http://bit.ly/1ro6ipC and http://bit.ly/1q5CtsB contextualize the bill as the latest in a string of false starts and incremental changes on similar issues.) At a State Senate Environmental Quality Committee hearing April 30, Sen. Hannah-Ruth Jackson of Santa Barbara, an EQ committee member and lawyer who also chairs the Judiciary Committee, questioned thoroughly whether the measure would serve its stated purpose. (See minutes 4:31 to 5:21 on the hearing video at http://senate.ca.gov/vod/20140430_0914_STV2Vid.) Proponents of the measure at the hearing called it a necessary safeguard against "late hit" gamesmanship used to delay projects or gain tactical advantages. Opponents, including environmental and labor lobbyists, suggested the bill might do more to deny a hearing to amateur and underfunded opponents who learn about their rights late in the process than it would do to make experienced players play fair. The sides disagreed on whether SB 1451 duplicated effects from the 2011 case of CREED v. San Diego (discussed by the Abbott & Kindermann firm at http://bit.ly/1lKmi5U). Opponents said CREED already blocked abusive late document dumps; proponents said it only required them to be more clearly presented for review. Sen. Hill said at the hearing that, among opposition groups, only the Center for Biological Diversity (CBD) had been willing to discuss amendments with him. But later in the same discussion, CBD's California climate policy director, Brian Nowicki, said the group opposed the bill fully, having chosen to withdraw a previously proposed technical amendment. At the hearing, speakers and legislators gave the impression of being in sympathy with calls to block manipulation of the system, but some, including Jackson, called the bill too crude an instrument to do it. The bill passed out of EQ to Judiciary that day, but by a 4-2 vote: Jackson and Loni Hancock of Berkeley opposed it while Mark Leno of San Francisco gave a reluctant tiebreaking "yes". Before the bill reached its May 6 Judiciary Committee hearing, the hearing was shown as canceled by author's request. What's left for CEQA in the current session The two remaining prominent CEQA bills, AB 52 and SB 1309, are each designed to have major effects in narrow areas. Sierra Club lobbyist Kathryn Phillips noted last month there is always a chance of a a last-minute gut-and-amend attempt to make last-minute CEQA changes – but for now the proposals that are conventionally in the works look pretty specific: AB 52 would redefine environmental effects to include "a substantial adverse change in the significance of a tribal cultural resource" and would require consultation with a locally affiliated tribe. The bill would allow a resource to include a "cultural landscape" as well as a narrowly defined place such as a grave site. A provision limiting its application to federally recognized tribes has raised questions what effect that may have on unrecognized tribes. See http://bit.ly/1pknpsg. The bill is at http://bit.ly/1khDEro. Legislation could still pass along the lines of SB 1309, by outgoing Sen. Darrell Steinberg, D-Sacramento. In that bill – which itself appears to have missed some procedural deadlines – Steinberg set out generic "spot bill" language describing an intent to smooth a way to environmental approval for the Tesla company's proposed battery production "Gigafactory". (See http://bit.ly/1u0hGI1 for the SB 1309 bill. Governor Jerry Brown has already signed a different bill, SB 2389, that together with a rich meal of Lockheed incentives allows local governments to offer Tesla tax breaks as incentives to build its factory in their areas. See http://lat.ms/1ydtmLj. On prior efforts to court Tesla see http://www.cp-dr.com/articles/node-3508.) Topics to revisit next session That leaves the Legislature waiting for new CEQA ideas, if not eagerly then receptively. In late May the State Senate Environmental Quality and Judiciary Committees even circulated a letter to "CEQA Stakeholders," inviting past participants in CEQA lobbying to submit responses by September 1 – i.e., for the next legislative session. The letter asked open-ended questions about what could be improved in CEQA law. (A copy is at http://www.cp-dr.com/sites/default/files/CEQALetterPrinted.pdf.) Proposals with a strong chance of movement will most likely come from the political right. Environmental and labor advocates don't appear to see any politically realistic amendment that could be to their advantage. Everyone agrees that procedural gaming happens under CEQA but CEQA's defender say the effects of "document dumping" and other surprise tactics are less than business groups claim. David Pettit of the Natural Resources Defense Council (NRDC) said, "I don't think CEQA is broken. So I don't understand why we need to fix it." Told that an environmental advocate had made the comment, Samson at the Chamber of Commerce retorted, "I think that saying CEQA isn't broken is turning a blind eye to reality." Samson said the bill was being used "more and more as a mechanism to stop or otherwise delay projects on grounds completely unrelated to the environment. Anybody who says to the contrary, I think, is wholly misinformed." In last month's conversation, Phillips said the Legislature and staff face an annual weary task of sorting through a welter of CEQA proposals: some politically outrageous, hence not viable, and some densely technical, giving readers the sense that "someone's trying to pull the wool over their eyes." She said past apparent moments of consensus had failed, so that "there's probably no way now to have an intelligent and constructive conversation about CEQA" and from her point of view there were better areas for legislative energy. There have been a few efforts to punch through the CEQA deadlock with piecemeal single-project legislation but those kinds of bills may have a limited future. Bipartisan irritation is evident over bills like SB 1309 for Tesla and the Sacramento arena provisions of SB 743 that provide procedural or other relief from CEQA requirements for special projects, rather than address the broad nature of the environmental review system. This spring SB 1309 drew critics across an ideological expanse from the Sierra Club to the Sacramento Bee editorial board. With Sacramento a candidate for Tesla's battery factory, the Bee carefully expressed approval of Elon Musk and his lucrative businesses — and yet still criticized SB 1309, saying "we don't think that only VIPs – Very Important Projects – should be given relief from the state's important but often misused California Environmental Quality Act." (See http://bit.ly/1nwqu4R.) Samson said "many are reluctantly supporting those types of bills" because if they don't support them then they lose their chances of bringing in an important project, "but at the same time, if this is good enough for some projects why can't it be good enough statewide?" Among other potential areas for legislation is the CEQA front in the eternal conflict between construction companies and labor unions. That was evident on SB 1451, which important labor groups opposed. Business lobbyists have long accused unions of using environmental objections as leverage for contractual advantages such as project labor agreements. A statement issued by the State Building & Construction Trades Council of California said the SB 1451 bill was held back "after the Building Trades' legislative advocates told committee members that the measure would have allowed agencies to ignore risks to public health, communities and construction workers." The statement called the bill "yet another attempt by the Chamber of Commerce, developers and industry to remove our members' voice from the development process." In the SB 1451 public hearing discussion, agreement had almost seemed to emerge on concern for unlawyered citizens who learned of projects at the last minute, in some cases because of perfunctory compliance with public notice procedures. So would better public notice procedures be a route toward some agreement? Samson said "we made it very clear to the opposition that we were open to" discussing alternatives to make sure that CEQA is providing adequate and effective notice to the public. But he felt more thorough public notice wouldn't resolve the basic disagreements with environmental and labor groups. Pettit and Samson each independently brought up a possible business-lobby effort on another form of disclosure: to learn more about the identities of organizations challenging projects. Pettit predicted "the same old stuff" on CEQA in the next session would include disputes over exemptions, efforts to make preparation of the administrative record more difficult for challengers, and more efforts to limit project challengers' standing to sue, in an effort to deter unions and ad-hoc community groups. In that last category he pointed to "very serious First Amendment issues" surrounding goals such as inquiring into organizations' membership and funding sources. He said it's common to point to the narrower standing rules of the federal National Environmental Policy Act as an example – though his own response was that an environmental issue, once raised, needs to be resolved, regardless of who raises it. But Samson argued for more disclosure on "the new wave of neighborhood groups." He said when a proponent is sued by a neighborhood group – "citizens against blah" or "neighbors against blah" – "You don't know who is actually suing you or who is financing that suit." He said the identity of parties suing thus became an issue, and a problematic one under a statute dedicated to disclosure and transparency. For a potentially related case from this spring barring depositions of homeowners' association members in a construction defect case, see Seahaus La Jolla Owners Association v. Superior Court , discussed at http://www.cp-dr.com/articles/node-3453, text at http://www.courts.ca.gov/opinions/documents/D064567.PDF. But considering the many changes that OPR and the State Supreme Court could unload any day now, it remains to be seen how much of the current legislative posture will turn out to matter.

This fall, California's Strategic Growth Council will release a preliminary assessment about SB 375's implementation to date. So now is a good time to step back and deeply reflect on how we are running public participation processes in this state, especially legislatively mandated ones. We need to consider how legislative requirements like those for the SB 375 regional planning process may help or hinder meaningful public engagement. Public process design is critical when participants are ideologically divided and do not trust each other or the public agencies in charge. It can be important to seek out areas of common ground. For example, all of us in a process may not able to agree on whether climate change exists, but we might be able to agree that hybrid vehicles should pay their fair share for road costs. We may not be able to agree on whether high density housing is beneficial in most circumstances, but we could do joint fact-finding to assess impacts on property rights, property values and public services like schools, police and fire departments. In the course of my research on contested regional planning issues in the San Francisco Bay Area and in Atlanta, Georgia, surprising areas of convergence emerged. In the Bay Area, Tea Party and property rights activists came in force to block regional planning meetings run by the Metropolitan Transportation Commission and Association of Bay Area Governments to develop the region's first Sustainable Communities Plan, known as Plan Bay Area. These activists were not alone in opposition, as plaintiffs from across the political spectrum filed four lawsuits against the plan: two with connections to Tea Party and property rights activists, one brought by the Building Industry Association Bay Area, and one was by environmental organizations. And in the progressive left stronghold of Marin County, citizens not affiliated with Tea Party or property rights groups have raised Cain against cities that adopted higher density development areas in order to access regional funds available through the plan. (On early Tea Party and property rights activists' opposition to SB 375 see http://www.cp-dr.com/articles/node-3011. On the initial Plan Bay Area lawsuits see http://www.cp-dr.com/articles/node-3403. On the suits' partial resolution this year see http://www.planetizen.com/articles/node-69937, http://www.planetizen.com/articles/node-70187 and the Mercury News at http://bit.ly/1rngVsh.) In Atlanta, Tea Party and property rights activists led the opposition to a regional sales tax proposal before the voters in 2012. The measure would have dedicated half of the estimated funds generated to public transit projects. An unexpected loose coalition of strange bedfellows emerged: Sierra Club and NAACP leaders joined the opposition, in part because they felt the proposed transit projects were not the ones the area needed. Although it is hard to say what impact the coalition had on the measure, the tax failed tremendously with 63% of the votes in opposition. Convergences When examining the two contentious regions, I found four points of convergence between conservative activists and planning scholars, largely over transport policy and process matters, that warrant planners' attention. These align generally with progressive activists' positions even though the divergent sides come to planning from different vantage points. First, the most surprising area of agreement was in Atlanta when on a vehicle miles traveled (VMT) fee. Conservative activists supported this fee as a replacement for the gas tax if major administrative and privacy challenges were overcome. Like researchers who argue for fees based on vehicle miles traveled, conservative activists are concerned that drivers of electric and hybrid vehicles are not paying their full share of costs to the transport system. Progressives often advocate for this fee transition too, but with the hope that funding could be directed to transit, bicycle and pedestrian projects. Second, conservative activists in both the Bay Area and Atlanta questioned the wisdom of running costly rail lines in low-density areas – another area where they align with researchers who caution that mass transit needs a sufficient mass of residents and jobs to generate transit riders or the system will have little use. Instead, these activists, researchers – and often progressive counterparts too – view Bus Rapid Transit service as a viable less expensive option, particularly when a local area does not have the density to support rail. Thus, where we may think that conservative activists oppose transit outright, those I interviewed offered a more nuanced understanding. Like researchers, they looked to development densities for ridership generation and found it important to weigh project costs.  Third, activists in both regions questioned the authenticity of the planning process and whether planners went through the motions to arrive at a predetermined outcome. Planners involved likewise questioned the activists' motivations and actions. Planning scholars and progressive activists have debated for decades whether large-scale planning processes with public meetings and hearings are meaningful formats for gaining genuine public input. Fourth, in Atlanta, activists across the political spectrum opposed the 2012 sales tax proposal because it was a regressive across-the-board tax rather than a user fee. Transportation scholars similarly have cautioned against sales taxes to fund infrastructure. They also argue that in California, where local sales taxes for transport run rampant, the state should move to a user fee system. Possibilities A way forward for planning efforts when the citizenry are divided along ideological lines could begin with participants seeking to find areas of common ground like the ones outlined above. Planners could draw from the political theory of agonism to reframe their approach to civic engagement. In agonistic contexts, actors come to consider their opposition as legitimate adversaries rather than as enemies unworthy of engagement. In such moments, actors retain their core values and identities but they may also find limited common ground with others, or agree to disagree. Group consensus is not a goal, but compromise through bargaining and negotiations may occur. Debates can be informed by analyses jointly developed between activists and planners that examine, for example, the range of potential property rights impacts and the full-lifecycle costs of projects and plans. While challenging, it may be worthwhile to establish the long-term objective of transitioning from highly antagonistic, counterproductive encounters to interactions of agonistic debate. In the long run, the state may be well served by looking to areas of convergence as key to a  comprehensive examination of SB 375's public participation and general requirements. Current law and practice push regions to adopt plans that can be vulnerable to lawsuits if they are supported only by weak consensus. Such plans may be barely able to hold together over time. We wouldn't ship a package long-distance in crumpled wrapping and fraying tape. Likewise, we need solid community negotiations to keep  plans from coming apart. Dr. Karen Trapenberg Frick is Assistant Adjunct Professor in the Department of City and Regional Planning at UC Berkeley. She is Co-Director of the UC Transportation Center and Assistant Director of the UC Transportation Center on Economic Competitiveness in Transportation (UCCONNECT). Her research focuses on the politics and planning of transport infrastructure. Recent projects have included a study of Tea Party and property rights activists' perspectives on planning and planners' responses. Links and references: For more on the research discussed above, see Dr. Karen Trapenberg Frick's papers in the Journal of the American Planning Association at http://www.tandfonline.com/doi/full/10.1080/01944363.2013.885312 and in Urban Studies at http://usj.sagepub.com/content/early/2014/04/07/0042098014528397. For preliminary findings from the Strategic Growth Council on self-assessments by Metropolitan Planning Organizations on their SB 375 planning processes, see http://www.sgc.ca.gov/docs/Agenda_Item_7_MPO_SCS_Self-Assessment_Update.pdf. On the political theory of agonism, see: Hillier, J. (2002) Direct action and agonism in democratic planning practice. In: P. Allmendinger and M. Tewdwr-Jones (Eds.) Planning Futures: New Directions for Planning Theory, pp. 110-35. Mouffe, C. (2013) Agonistics: Thinking The World Politically. London: Verso.

The Sierra Club's Marin Group of chapters brought a court challenge July 10 seeking to reverse the Coastal Commission's May approval of the Marin County Land Use Plan Update. Filed by attorney John E. Sharp of San Rafael, the writ petition alleges violations of the Coastal Act, principally in the update's provisions allowing farmers to obtain permits as of right for more houses and other structures under a broadened definition of "agriculture." It further alleges noncompliance with CEQA through failure to analyze feasible alternatives or mitigation measures -- an argument founded on the requirement that, although local coastal plan revisions need not prepare a full EIR, they must include findings functionally equivalent to those required by CEQA. As of Monday county staff responded that they had not yet seen the suit and spokeswoman Sarah Christie said the Commission had not yet been served. The Environmental Action Committee of West Marin (EAC), which had sought more development restrictions in the spring, chose not to file suit. Amy Trainer, executive director of EAC, listed continuing criticisms of the May-approved plan, but wrote: "EAC is committed to working with the Coastal Commission staff to address our concerns in the Implementation Plan. We decided that a lawsuit at this time was not in our best interest." The contested update forms the initial, most substantial part of the pending Marin Local Coastal Program Amendment (LCPA), which would be the first update to the program since 1981. The Commission has been waiting to take up the implementing ordinances that complete the LCPA until they are rewritten to reflect the tangle of last-minute amendments that the Commission added to the Land Use Plan in May. (See http://www.cp-dr.com/articles/node-3493 for details from the meeting.) A press release from the Sierra Club Marin Group quoted Executive Committee member Elena Belsky as warning that "if allowed to stand, the Commission's process and decisions regarding the Marin Local Coastal Plan Amendment will substantially weaken environment protections along the entire California coast." A further statement attributed to Belsky warned against "the precedent set of poor process and lack of environmental review, which could become the standard for updates of other LCPs around the state." The release and petition said the existing plan failed sufficiently to respect public participation rights and to consider the plan's effects on natural habitats, the appearance of the area, and the preservation of prime farmland. The petition included claims in an area disputed during the May hearing: that because the amended land use plan allows extra "intergenerational" farmhouses and other added farm housing, and because "the amendment redefines 'parcel' as 'legal lot of record'," the plan could "expose the coastal zone to over 1,000,000 of new residential development on agricultural lands, insofar as conversion from 'parcel' to 'legal lot of record' can be accomplished administratively, without scrutiny or regulation." It was not clear if this phrasing was meant to renew a concern raised in the May debate that permits for new farmhouses might be granted per 60-acre buildable lot, rather than allowing one set of the defined types of buildings on each entire farm. Trainer did not respond to the text of the Sierra Club petition, but she appeared to take a different view in an email answering queries about EAC's decision not to sue. She wrote that the Commission had "clarified" that the allowed construction was per farm, not per legal lot. But would that rule create an incentive to divide existing large farms into smaller 60-acre ones, potentially for hobby farmers? She wrote, "We are concerned about that but understand that most agricultural operators in the coastal zone have no intention currently to do this. We are hopeful that the Marin Agricultural Land Trust is working to secure both conservation easements and affirmative agricultural easements to prevent hobby farms." (Arguments from Coastal Commission staff that each farm gets just one set of farm buildings appear in the first addendum to the staff report on Pages 8-9 of the PDF in the May agenda item packet at http://documents.coastal.ca.gov/reports/2014/5/Th12a-5-2014.pdf.) The Sierra Club Marin Group's press release said the contested plan would allow construction of "between 129 and 210 new residences in the next ten years." As discussed at http://www.cp-dr.com/articles/node-3493, the potential number of houses that could be built on West Marin farmland under the new policy was calculated variously during the May debates as ranging from 110 under the county's view of conditions under the Land Use Plan, to a possible 263 if current Williamson Act restrictions on farmland were lifted. Trainer's email and the Sierra Club press release each criticized the broadened definition of agriculture, which allows a first, second, and (on 180-acre properties) a third farmhouse to be built on each farm, with specified other structures allowed that could include 5000 feet of commercial processing space. The agricultural designation makes these principally permitted uses, allowable as of right and only appealable directly to the Commission in certain circumstances, such as for properties nearest coastlines or watercourses. Trainer wrote, "Sometimes Marin County's Development Agency simply gets it wrong, and when that happens the public should absolutely have the right to seek review before the Coastal Commission." EAC's past comments, like the Sierra Club's complaint, had called for environmental analysis that would qualify as the functional equivalent of an environmental impact report. In her recent email Trainer renewed a CEQA-type concern along similar lines that "little to no environmental cumulative impact analysis was performed" for "significant changes" to the LCP. The Sierra Club press release pays extra attention to the role of Marin County Supervisor and Coastal Commission Chair Steve Kinsey, saying he has been criticized over the years for "aggressively promoting development" and saying he has discussed a wish to make the Commission "more 'streamlined' and 'user-friendly'". The Sierra Club suit's docket is available at http://bit.ly/1p4rRbO. Belsky wrote that the petition would soon be posted on the Marin Group's Web site, which is at http://www.sanfranciscobay.sierraclub.org/Marin/.