To many urban planners, the "mixed-use" development project is a kind of Holy Grail, a development that combines residential units with commercial space into one seamless project where people can both live and work. Although other ideas are also important to planners seeking to create urban-style places — specifically, higher-density housing and development oriented around transit stops – the mixed-use concept often seems the most compelling. But as the New Urbanists have been arguing since the 1980s, it is often the planners themselves who are the biggest obstacles to mixed-use projects. In many communities, developers could not build a mixed-use project even if they wanted to because the local development code won’t permit it. Advocates of mixed-use development have often called on cities to simply throw out their old zoning codes and start from scratch. Fifteen years after California planners first watched Andres Duany throw the codebook in the wastebasket as part of his stump speech for New Urbanism, things have begun to change. Increasingly, real estate developers and financiers in California are interested in building mixed-use projects. So the codebook has begun to catch up. In some California communities, we are seeing not just one mixed-use zoning in the codebook but several – each designed for a different kind of community setting. Of course, the very term "mixed use" suggests a concept that is the exception rather than the rule. It’s an artifact of the original concept of zoning, which sought to segregate different types of activities rather than combine them. The main purpose of zoning regulations was to protect residences from the effects of "incompatible" land uses, especially industrial activities, but also commercial activities. The idea of "mixing" uses suggests that uses are separate to begin with and can be integrated only in special circumstances. Given the overarching bias of the entire zoning system for a segregation of uses, it is not surprising that the mixed use concept tends to be ghettoized primarily in older downtowns. In such settings, it is a matter of practical reality: The zoning code has little choice but to follow the development patterns that existed prior to its passage. Downtown mixed-use zones also hold the potential to free up old buildings that would otherwise have a hard time finding tenants. For example, the upper floors of older retail buildings that might have been used for offices long ago nowadays might get converted to residential hotels, apartments or lofts. Far more interesting, however, is the application of mixed-use zoning in older suburban settings outside of downtowns. These areas range widely in their character – from ‘20s streetcar neighborhoods to ‘80s industrial parks – but they all have one thing in common: As communities run out of land, these areas are viewed as locations where more housing can be built. The Magnolia Avenue corridor in Riverside is a good example. This older strip, which stretches from downtown Riverside westward through the city, is the main focus of the city’s current general plan revision. Paralleling the 91 freeway, Magnolia is Riverside’s once-proud main arterial, and it is still the most heavily used bus corridor in all of Riverside County. Now that it is almost built out, Riverside is looking to redesignate older sites for newer uses, and most of the sites in play lie along Magnolia. Some of the property – such as the land at the western mouth of the city, adjacent to Norco – will be redesignated for industrial development. But most of the sites will be redesignated either for residential or for mixed use with a residential component. Riverside currently has only one mixed-use zone in its zoning code, a zone targeted for downtown. The emerging general plan envisions three different mixed-use zones for different settings, including one for corridors such as Magnolia. How this gets translated into the technicalities of development regulations is not clear, acknowledges Planning Director Ken Gutierrez. But, he argues, such changes must occur for the general plan to be implemented. Another emerging concept – but one that has not worked its way into most zoning regulations yet – is the idea of "horizontal mixed use." This might involve a large, undeveloped property along a busy arterial which has commercial frontage but also stretches deep into an adjoining residential area. The resulting development might not be literally mixed use, but it will have commercial and residential uses adjacent to one another, each blending into their surroundings yet connected to each other. Then there is the truly outside-the-box example of housing in an industrial park, a concept that San Jose has promoted in the northern parts of the city where jobs are plentiful and land is scarce. The flexible zoning that most business parks have makes the combination of uses possible in such a situation. With these emerging hybrid forms of mixed use, the biggest issues may not be changes in the uses permitted by the zoning code, but, rather, the new standards required for parking, buffering, and related issues. Parking is the most obvious potential problem because different types of uses have such different parking demands. Increasingly in downtown areas, parking requirements are being waived or dramatically reduced, especially if public parking structures are available nearby. In more suburban settings, shared parking is a common solution, with businesses using the parking spaces during the day and residences using them at night. That solution can run into difficulty, however, especially when business owners want parking spaces specifically earmarked for their stores or offices. Buffering the noise, lights, traffic, and other intense activity that often accompanies nonresidential uses is another issue. In an innovative vertical mixed-use setting – such as the Paseo Colorado retail/residential project in downtown Pasadena (see CP&DR Places, November 1999) – residents are attracted in part because of the intense activity. Loading docks and other industrial activities can take place underground in parking garages. In the more typical suburban setting, however, these are big issues that might impede horizontal mixed-use projects. The local development code might have strict light, noise, and traffic standards in residential areas. Yet in a mixed-use setting, these activities must take place in close proximity to one- or two-story residences. This is where mixed-use zoning must truly operate outside the box – or outside the big box, as the case may be. Traditional suburban zoning sought to solve all problems with distance, essentially eliminating conflict and incompatibility by placing uses far away from each other. Eliminating light, noise, and other distractions in a mixed-use setting requires better design and construction methods, not more space. However, these are not the types of standards that conventional California planning departments are accustomed to dealing with. Mixed use of all kinds is rapidly becoming a reality throughout California. It will undoubtedly take a while for our codes to catch up.

Landscapes, like human bodies, have histories, and sometimes those histories can leave scars. The difference between a human body and a city is that a city has a longer life. Some scars in the landscape last for centuries, such as certain roads in present-day Atlanta that zig and zag for no obvious reason. When we look at the map, we realize those roads marked the boundaries between ancient, long-forgotten farms. In other cities we see the traces of rail tracks, and the warehouses and factories built along those tracks, even though the train has long stopped running. In lower Manhattan, we have a proposal for water-filled footprints of two high-rise buildings that no longer exist. Maybe scar is too harsh a name for a mark in the landscape. Scars on a human body are rarely attractive, except, perhaps, to a doctor examining a patient and looking for clues to the patient’s health history. For cities, scars can be interesting, even beautiful. They interrupt the monotony of the street grid and give us a clue into urban history. They are indications that the city is strong enough to heal. The demise of the regional mall, at least the old malls from the 1950s and ’60s, will leave behind scars. These injuries will be hard to heal because they are enormous. Like sports stadiums, hospitals and convention centers, malls are over-sized objects that fit awkwardly at best into cities. Defunct malls become large white elephants. The trend of "de-malling" — reconfiguring malls for new uses — is a welcome one. In fact, changing the use and the tenants of a building is not all that difficult. A regional mall, after all, is just a large, dumb extrusion. Remove the central hallway and the demising walls, put some front doors on the outside of the buildings and presto! We have a big box, or a long line of big-box outlets. That’s the easy part. The hard part, devilishly hard, is to integrate the mall back into the surrounding city. The willingness to attempt the difficult task of reuniting the mall with the city is what makes Riverside Plaza, a current project in the city of Riverside, an interesting and maybe even an important project. It is not a masterpiece, at least not yet. At first glance, the site plan suggests a creature in transition, like a fish growing legs and becoming an amphibian. On the left hand side of the site plan, we see something resembling a traditional mall or neighborhood shopping center: A row of stores with a big field of parking in front. In the middle of the plan, however, the fish begins to grow legs and become urban. It sprouts a street with wide, tree-lined sidewalks and diagonal parking. This design is meant to be recall some of the oldest tree-lined streets in Riverside, which were among the earliest of Southern California’s grand tree-lined boulevards. The big square at the start of the street is an outdoor food court, which serves as a kind of foyer for the 16-screen multiplex to the immediate north. The new "main street" mirrors other parts of the Magnolia neighborhood of Riverside, where diagonal parking is the norm. Bill Kelley, the developer who reconfigured the old mall on behalf of the owner, Litchfield Advisors of Lake Forest, Ill., acknowledged the amphibious nature of the new Riverside Plaza. "It is not a traditional mall, or Main Street or a lifestyle center, but a sort of combination of all three," Kelley said. A glance at the "before" site plan shows how big a change the new mall, er, amphibian, represents from the old. Built in 1950 and renovated 20 years ago, the 613,000-square-foot mall had lost much of its market share to the newer Galleria at Tyler five miles west. After acquiring the aging mall in 1998, the owner decided that a change was needed. According to Kelley, "this part of the city needed a gathering place." The opportunity was the local dearth in movie screens. The bankruptcy of Montgomery Ward, which had a 60-year lease on a stand-alone building, delayed the start of work until 2001 but also freed up a big piece of space. Harris/Gottschalk’s, the other department-store "anchor," did want to leave its 113,000-square-foot leasehold — it’s the only part of the old mall that dodged the bulldozer — while other merchants wanted to stay in the mall but were willing to accept new or renovated quarters. This bit of history is worth remembering, because it may account for a certain awkwardness or inflexibility in the plan. Harris/Gottschalk’s is smack dab in the center of the plan, and to large extent, Riverside Plaza had to be planned around the remaining department store. I am not going to pass final judgement on Riverside Plaza because I do not believe the story is over. This mall wants to become a street. It is a considerable achievement, if an incomplete one, that the developer and owner were able to carve a public-spirited street out of the carcass of the dead mall. The amphibious nature of the site plan is unsatisfying and incomplete. True, the developer has worked hard to provide a walkable sidewalk around the left side of the plan, but it still seems like a beautification of the old suburban, car-oriented mall. The main street, ersatz or not, wants to continue all the way through. I am hoping that in the not too distant future, the mall will be successful enough to justify construction of a new row of buildings where much of the parking is now. Cars could park in a new vertical parking structure. Someday, the traces of the old mall will be little more than a scar in the city pattern, such as the place where old roads meet new roads along a seam that was the boundary line of the mall parking lot, or that odd jog in the road that used to be place where the food court on Main Street met the big parking lot. Those are bits of urban history worth preserving. Compared with the open wound of a dead or dying mall, these few scars will be beautiful.

California’s local governments are feeling the pain of the state budget shortfall. Gov. Arnold Schwarzenegger’s proposal to shift more property tax dollars from cities and counties to schools, combined with uncertainty over backfill of the lost car tax and various state budget cutbacks is forcing many local agencies to revisit their service levels, raise fees and delay various projects. Among the most obvious impacts will be additional traffic congestion due to delayed transportation projects. The administration proposes a combined $2 billion in transportation reductions during the current budget year and in 2004-05 — and it is unknown when transportation funding will return to "normal." Money for projects already included in the State Transportation Improvement Plan (STIP) is in doubt, and some transportation agencies figure they must rely on local and federal revenues in coming years. "We’re looking at 2008 or 2010 for projects that we thought were going to break ground in 18 months," complained West Sacramento City Manager Toby Ross. The state budget problems are also eating into discretionary dollars that cities and counties spend in areas such as advance land use planning and redevelopment. Some jurisdictions are raising fees, as "full cost recovery" is the mantra in numerous planning departments. When the governor rolled out his $99 billion budget for 2004-05 in January, local government officials were distressed to see a new round of property tax transfers. Similar transfers to the Education Revenue Augmentation Fund (ERAF) already cost cities and counties about $5 billion a year. Schwarzenegger proposes moving another $1.3 billion away from cities and counties — a permanent takeaway of about 10% of property tax revenues. The shift also includes $135 million from redevelopment agencies, who have absorbed recent one-time hits but have not been subject to ongoing ERAF losses. "We estimate that about 60% of the agencies in the state will not have sufficient funds to make ERAF payments of this magnitude after meeting existing obligations to pay property tax pass-through payments to other local governments, debt service, contractual commitments, and regular administrative expenses," California Redevelopment Association Executive Director John Shirey warned in a message to members. The shift of property tax "further undermines the economics of new housing projects," said League of California Cities spokeswoman Megan Taylor, because even current levels of property tax do not fully fund the services required by houses. Counties would feel the brunt of the latest ERAF shift. California State Association of Counties President Paul Stein said any county department that receives general fund support — including most planning, building and transportation departments — will face cutbacks. Stein, a Calaveras County supervisor, said raising revenues is not an option in his conservative neck of the woods. "Just to think that we could easily go to the voters and increase a tax on something isn’t realistic," said Stein, who noted that voters recently rejected an increase in the hotel bed tax. And Stein said he could not vote to raise user fees because " you don’t do that in times of duress, and that’s what we have here." Other jurisdictions, both cities and counties, are not hesitating to bump up fees at the planning and building department counters, and elsewhere. In Santa Rosa, for example, the City Council has mandated "100% cost recovery" for processing all planning applications, said Community Development Director Wayne Goldberg. The city raised fees modestly last June. This month, a 40% fee increase is scheduled to take effect. The fees are intended to cover all direct costs and overhead. "Our fees were fairly low before we got this mandate. I think now we’re probably above the median," Goldberg said. The Santa Rosa development community has not fought the fee increases because the city has guaranteed that turn-around times would remain constant. However, Goldberg’s department has also cut staff, losing seven positions — 10% of staffing — last fiscal year and another 10% this fiscal year. To keep pace, the city has been forced to modify some review processes, he said. Goldberg said his advance planning division, which has only two employees, has not been hurt by the cutbacks. Other jurisdictions, however, report staff reductions for long-term planning. Nearly 200 cities and counties have lent their support to a proposed initiative that would block the state from taking local revenues, such as property and car taxes, without voter approval. The measure would apparently prohibit Schwarzenegger’s proposed property tax shift. The initiative is likely to hit the street this month and could appear on the November ballot. The transportation cutbacks are dramatic. Besides eliminating the Davis administration’s Traffic Congestion Relief Program (TCRP), Schwarzenegger also proposes suspending the Proposition 42 guarantee of gasoline sales tax revenue for roads. "If adopted," says a Legislative Analyst’s Office review of the budget, "the administration’s proposal to suspend Proposition 42 would be the second suspension, in full or in part, in the first two years of this program, thereby creating uncertainty regarding future Proposition 42 transfers when the state faces a budgetary crisis. Such uncertainty makes long-term planning difficult, and money will be wasted in stopping and restarting projects, many of which are local priorities." The San Bernardino Association of Governments (SANBAG) has placed a number of projects on hold, including several rail grade separation projects, and improvements to Interstates 10 and 15. The transportation agency was scheduled to get $169 million from the TCRP, but will end up with only $19 million, SANBAG spokeswoman Cheryl Donahue said. "We are not counting on any money from the STIP," Donahue added. "We are assuming the 2004 STIP is dead." For the Santa Clara Valley Transportation Authority (VTA), the state cutbacks come on top of a local economic slowdown that has hurt revenues from a local half-cent sales tax. Over the last two years, VTA has deferred or eliminated $120 million of locally funded projects, spokeswoman Anne-Catherine Vinickas said. The agency is continuing with planning and engineering so projects are "shelf ready" when the economy picks up, she said. The VTA stands to lose about $630 million that was in the TCRP for the agency’s biggest project, a $4 billion extension of BART from Fremont to San Jose. Moreover, the Federal Transit Administration in January recommended against $843 million for the BART project. Vinickas said VTA is bonding against future revenues to continue engineering for the BART project, which had been scheduled for completion in 2014. Voters approved a half-cent sales tax scheduled to take effect in 2006, with the money dedicated solely to transit. Still, with VTA running an annual deficit of up to $100 million, it is unclear when the agency could build the BART line. In West Sacramento, the numbers are smaller. But, says City Manager Ross, the need for a new interchange at I-80 and Harbor Boulevard is unmistakable. The roughly $12 million project was in the 2006 STIP, but that funding appears unlikely to materialize. Plus, state officials now say the city must pay 75% of the project cost, up from 50%. "We can’t do nothing. What it means is we’ll have to supplement that project with some 100% locally funded projects," said Ross, suggesting some temporary ramp modifications. While administration officials defend the cutbacks as necessary, Business Transportation and Housing Secretary Sunne Wright McPeak has said future transportation funding decisions could be based on local approval of housing and job centers. "We have not been getting enough return on our investment," McPeak told the . "We have improved capacity in some areas but we have increased congestion because we have an inefficient land use pattern that has hurt our economic competitiveness." The administration has not proposed substantial cutbacks for the Department of Housing and Community Development — and did not suspend the mandate for updating housing elements. The administration’s January budget proposal for the Resources Agency was incomplete. Contacts: Wayne Goldberg, City of Santa Rosa, (707) 543-3220. Toby Ross, City of West Sacramento, (916) 617-4500. Paul Stein, California State Association of Counties, (209) 754-6370. Cheryl Donahue, San Bernardino Association of Governments, (909) 884-8276. League of California Cities website: www.cacities.org Legislative Analyst’s Office website: www.lao.ca.gov

The City of San Jose did not have to prepare a supplemental environmental impact report for the proposed expansion of a water recycling program because an earlier EIR adequately addressed the issues, the Sixth District Court of Appeal has ruled. The ruling came in a lawsuit filed by a citizens group and the Great Oaks Water Company. They opposed a proposed nine-mile-long main that would carry up to 15 million gallons per day of treated wastewater to North Coyote Valley for use as recycled water. The court determined that there was no substantial evidence that the proposed project would have impacts other than those already identified. During the 1980s, the San Francisco Bay Regional Water Quality Control Board told San Jose to redirect some of its treated wastewater away from the bay because the wastewater was interfering with saltwater habitat of endangered species. So the city created the South Bay Water Recycling Program, which sought to use treated wastewater for irrigation and other purposes. The project contemplated a treatment plant and pipeline system in the "Golden Triangle," which contains portions of San Jose, Milpitas and Santa Clara, and future expansions of the system. The city certified a Final EIR (FEIR) for the water recycling program in 1993. The FEIR evaluated "project level" impacts within the Golden Triangle and future expansion at the "program level." In 1999, Calpine Corporation proposed building a 600-megawatt, gas-fired power plant in North Coyote Valley, several miles south of the Golden Triangle (see , July 2001, March 2001). The California Energy Commission approved the power plant with the condition that the power plant — called the Metcalf Energy Center — use recycled water in its cooling system. In mid-2000, the city completed a Phase 2 initial study of a proposed "Via del Oro extension" of the recycled water system that would reach the proposed Metcalf site. The city adopted a negative declaration based on the initial study. In July 2001, the city considered an alternative route to the Metcalf site called the "Silver Creek alignment." This 30-inch pipeline could carry up to 15 million gallons per day. Because the Metcalf Energy Center’s peak usage was expected to be only one-third that amount, the pipeline would carry up to 10 million gallons daily for other, unidentified users. The city adopted a new initial study by addendum to the FEIR in September 2001. The city concluded the project "does not involve new significant environmental effects or a substantial increase in the severity of previously identified significant effects." The city then signed a recycled water contract with Calpine. The Santa Teresa Citizen Action Group and the Great Oaks Water Company sued, contending the city had violated CEQA and the city general plan. Santa Clara County Superior Court Judge Leslie Nichols ruled for the city. The project opponents appealed, and a three-judge panel of the Sixth District upheld the lower court. The opponents pressed two major allegations: The drinking water aquifer beneath the North Coyote Valley lacked the nearly impermeable clay layer that protects drinking water beneath the Golden Triangle from recycled wastewater, and the treated wastewater contains two contaminants in excess of drinking water standards. The opponents said the 2001 initial study was inadequate because it relied upon the FEIR, which, they said, did not consider the geologic differences or the presence of certain toxic substances. They also pointed to the fact that the Silver Creek alignment was not included in the Phase 2 initial study and negative declaration. Opponents said a subsequent or supplement EIR was necessary. The court ruled that because an EIR had already been certified, the opponents had to pass the "substantial evidence standard," which was deferential to the city. The opponents had sought the more lenient "fair argument standard." The court ruled that opponents could not pass the substantial evidence test. "We cannot discern any significant change in the project or its circumstances arising from the Silver Creek alignment," Justice Eugene Premo wrote for the court. "The location of the Silver Creek alignment is not significantly different from the Via del Oro alignment that was fully evaluated and subject to public review and comment in connection with the Phase 2 initial study and negative declaration. Both routes extend into North Coyote Valley and both routes terminate at or near the site. do not explain, nor does the record shed any light upon how, if at all, the Silver Creek route poses a different or greater threat to the aquifer than that posed by the Via del Oro route. "Both the FEIR and the Phase 2 initial study determined that degradation of the groundwater was a potentially significant impact of a recycled water project but that the impact was reduced to insignificant by the implementation of various mitigation measures," Justice Premo wrote. Opponents presented a letter from the water company chairman and a declaration from a company-hired expert. Both said that the project may degrade the source of Great Oaks’ water. But the court ruled that the letter and declaration were outside the administrative record and not admissible. Besides, the court said, the city had addressed the concerns. The court rejected the general plan conflict argument, finding that there was evidence the project was consistent with the general plan policies regarding groundwater protection. The court further rejected arguments that the project threatened to create a nuisance and violated the public trust. Those arguments were not ready for judicial review because no specific use for the recycled water had been identified. (The Sixth District could not consider the Metcalf Energy Center because under state law, only the Supreme Court is authorized the review California Energy Commission decision.) Moreover, the court held, the public trust doctrine relates to surface waters, not groundwater sources. The Case: , No. H024841, 03 C.D.O.S. 10997, 2003 DJDAR 13864. Filed December 18, 2003. The Lawyers: For the citizens group: Stephan Volker, (510) 496-0600. For the city: Joseph DiCiuccio, city attorney’s office, (408) 277-2407. For Calpine: Anne Mudge, Stoel Rives, (415) 617-8900.

The Metropolitan Water District of Southern California finished filling its new reservoir, Diamond Valley Lake, last year, and the giant body of water opened for public boating and angling last fall. Even though those events capped a decade of planning, engineering and construction in the western Riverside County desert, the Met is far from finished at Diamond Valley Lake. The agency plans to build about $20 million worth of recreational and educational facilities near the reservoir in the near term, and even more facilities are proposed eventually. All of the amenities promise to make the new reservoir a center of outdoor recreation for Southern California. Furthermore, the Met is in the process of planning a far more ambitious development — as many as 2,400 housing units and 40 acres of commercial development on 750 acres the agency owns north and east of the lake. That urban development would, in part, pay for the recreational and educational facilities, and provide additional revenues for the water agency. The proposed 750-acre urban development was not part of the original Diamond Valley Lake project. However, the territory is already designated for residential development in the City of Hemet’s general plan — so the proposed houses are not too much of a surprise. "The area has blossomed in recent years. It’s become a new population center," said Leslie Barrett, Diamond Valley Lake program manager for the Met. "It’s certainly the right time to be in that area." But while Barrett and the Met see opportunity, environmentalists fret about the area’s rapid growth, which they claim does not always include needed municipal services. The lake’s attractiveness will only fuel that growth, environmentalists fear. "Landowners seem to think that there will be a big demand by retirees to settle in the area and that they will be selling homes in L.A. and Orange County to do so," said Gene Frick, of the Sierra Club’s San Gorgonio chapter. "We will get a sprawling housing boom around Diamond Valley Lake." Originally called Domenigoni Reservoir and later Eastside Reservoir, Diamond Valley Lake is a 4,000-acre water body that cost the Met $2 billion and approximately doubled the agency’s surface water storage in Southern California (see , August 1999, March 1993). The lake is known as "off-stream" storage, meaning that it is not located on a river. Instead, water is brought from a number of sources to the lake, which acts like a huge bathtub with dams of differing sizes on three sides. The water agency says it is storing the 800,000 acre-feet of water for use during times of peak demand, droughts and emergencies. Because of its location in a sensitive area, the reservoir project also included setting aside 9,000 acres of habitat for 16 rare species of animals and plants. The presence of these species in the area is one of the reasons environmentalists are likely to opposed housing developments around the lake. The lake is located just south of Hemet, a western Riverside County city that has roughly doubled in population to about 63,000 people in fewer than 20 years. Civic and community leaders in the Hemet area believe the lake will attract new residents and, even more so, visitors who will spend money in the area. Indeed, boating, fishing and parking reservations for the lake’s October 3 opening day sold out in only four hours. The Met is now working on the very things that could attract people to the area — and that could serve local residents, too. "There was a community expectation that recreation development would be a crucial part of Diamond Valley Lake," Barrett said. The City of Hemet is now processing the Met’s plans for two museums — an archaeology and paleontology museum, and a water education museum. The former will contain some of the discoveries made during the lake’s construction, including dinosaur skeletons. The latter will explain water development, treatment and uses. The city also has under review the Met’s plans for an 85-acre regional sports complex that includes many ball fields and an aquatic center. Among the facilities the Met wants to build, ironically, is a lake in which people may actually swim. Because Diamond Valley Lake is owned by a water agency, human contact with the water is forbidden by state law. So the Met intends to build an approximately 60-acre lake for swimming and other activities not permitted in the large reservoir. Also under consideration are a campground for recreational vehicles and tents, and a golf course, Barrett said. The Met also plans to greatly expand the marina so that it has more slips, a restaurant and clubhouse. Work is already under way on a 7-mile-long trail in the hills north of the lake. "Generally," said Hemet project planner Ron Running, "we’re happy that they are providing the uses that were promised when the lake was proposed. It’s taken some time." Aside from the recreational facilities, Met officials are working on a master plan for about 750 acres where an early proposal, disclosed last September, called for 1,600 single-family houses, 800 multi-family units, a commercial center and some public facilities. Barrett said planners are still nailing down exactly what to include in the project. The master plan will probably go before the Met board in April or May. Once the board approves the master plan, it will go to the City of Hemet for consideration. The original Diamond Valley Lake plan and EIR discussed residential development to the east and west of the lake, but not to the north, Barrett said. Thus, the latest proposed urban development would need a new EIR, he said. Contacts: Leslie Barrett, Metropolitan Water District of Southern California, (213) 217-6245. Ron Running, City of Hemet, (909) 765-2375. Gene Frick, San Gorgonio Chapter, Sierra Club, (909) 684-6203. Diamond Valley Lake website: www.dvlake.com

Now that the smoke has cleared from last fall’s Southern California firestorms, one might assume that fire protection experts and elected leaders are busy working on methods to ensure that developments in fire hazard areas are better protected. That assumption, however, is only partly true. A Governor’s Blue Ribbon Commission has completed a series of symposia sharing what was learned in the fire zone. Local governments from San Bernardino County to the City of San Diego are tinkering with building and fire ordinances. But the electorate’s reluctance to foot the bill for more facilities and services, and opposition from several fronts to fire-safe building and development regulations, have stymied real change. For example, the San Diego City Council during a January hearing was willing only to outlaw new wood roofs — a move that many fire-prone jurisdictions made during the 1970s and 1980s. The council punted on other proposals, including phasing out all wood roofs over 25 years, prohibiting wood fences, decks and garage doors in high hazard areas, and requiring chimney spark arrestors. Perhaps San Diego’s leaders and its reluctant citizens should visit Ventura County. The fires of October and November 2003 were the worst in California history. About three-quarter of a million acres burned in an arc surrounding the Los Angeles-San Diego megalopolis, transcribing an area from western Ventura County to the Mexican border. The fires killed 22 people, and 16 more people died in subsequent mudslides. Nearly 3,600 homes were destroyed – most of them in what is called the "urban-wildland interface." The data show that San Diego County was hardest hit while Ventura County avoided a calamity. Three planning factors appear to be responsible for the difference. Ventura County has: • A centralized fire protection agency function • Strongly-enforced building and fire codes that affect the urban-wildland interface • An anti-sprawl growth policy that reinforces code effectiveness. Fires destroyed 24 homes and damaged 14 more — "the largest property loss we’ve ever had locally," Ventura County Fire Chief Bob Roper said. In contrast, the City of San Diego alone lost more 300 homes. But these numbers do not mean Ventura County did not face a huge conflagration. The fall 2003 fires consumed 172,195 acres in Ventura County – a full 22% of the land area burned by the complex of fires — and advanced right to the edge of five cities and several unincorporated communities. Yet the Federal Emergency Management Agency reports that less than 1% of disaster assistance requests have come from Ventura County residents. Bill Peters, a California Department of Forestry spokesman, said Ventura County’s tough brush clearance program made the difference. Whereas San Bernardino and San Diego counties require structures in fire hazard areas be separated by a 30-foot non-flammable buffer area — a standard that has been virtually ignored in the forested mountain resort communities — Ventura County requires 100 feet of buffer. Since 1967, Ventura County has hired contractors to clear properties that are out of compliance and then billed the owners, tacking on an administrative fee. The county cleaned up several hundred properties annually during the program’s early years; the total now is down to an average of 30 per year. Ventura County’s brush clearance ordinance is coupled with strong building code requirements in unincorporated areas. Those codes require non-flammable roofing, and boxed and sprinkled eaves. Finally, the whole program is managed by the Ventura County Fire Department, working in concert with the county’s planning and building functions. Because Ventura County’s "Guidelines for Orderly Development" have long required that urban development be directed into one of the county’s 10 incorporated cities, and because six of those cities contract with the county for fire protection, the county ends up needing to protect mainly rural areas and can coordinate with other agencies efficiently. The other side of the fire safety planning coin is San Diego County, which suffered the greatest amount of deaths and property loss in October and November. San Diegans do not fund a county fire department. Instead, cities and the state protect the urban-wildland zone. The City of San Diego, for example, is jurisdictionally responsible for fire protection of the Scripps Ranch neighborhood, where lives and more than 300 homes were lost. In the immediate aftermath, officials across San Diego County scrambled to tighten building standards and fund better fire protection. But momentum for reform faded before the embers were cool. In late January, the San Diego City Council backed away from code amendments that would result in an average $20,000 increase in cost to current fire victims, a cost that insurance policies would not generally cover. In December, the Escondido City Council, representing a citizenry that experienced forced evacuations less than two months earlier, shelved a $40 million bond issue for fire stations and a fire administration center. A poll had indicated there was no support for the bond. Two weeks earlier, a San Diego County supervisor ditched his plan to ask voters for the funding of a fleet of fire helicopters, also citing a lack of voter support. While the fires have generated a great deal of official sole searching and an impressive amount of post-disaster analysis, there is little reason to believe the disaster will not be repeated. Mustering political fortitude apparently is just as difficult stopping a firestorm from consuming a poorly planned subdivision.

In a decision with separate opinions written by all three members of an appellate panel, the Ninth U.S. Circuit Court of Appeals has issued a preliminary injunction to block logging on burnt national forest land. The panel ruled 2-1 that opponents of the logging had crossed the threshold necessary to win a preliminary injunction while the litigation proceeds. Environmentalists contended that the U.S. Forest Service violated the National Environmental Policy Act (NEPA) and the National Forest Management Act (NFMA) when it approved the timber sale. "A preliminary injunction only requires plaintiffs to show probable success on the merits and the possibility of irreparable harm," Judge Sidney Thomas wrote for the court. The greater the probability of success, the lower the possibility of irreparable harm that is needed to sustain a preliminary injunction, and vice versa, the court ruled. The lawsuit is fallout from a summer 2001 wildfire that burned for weeks in the Sierra Nevada Mountains west of Lake Tahoe. In March 2002, the Forest Service released a draft environmental impact statement for the proposed logging of 1,714 acres in Eldorado National Forest. In August 2002, Forest Supervisor John Berry adopted a final EIS and a modified project alternative that prohibited logging of trees with green canopy in partially burned stands within two 300-acre "Protected Activity Centers" around spotted owl nesting sites. Environmentalists administratively appealed Berry’s decision, but the Forest Service upheld his action and awarded logging contracts to Sierra Pacific Industries. Earth Island Institute and the Center for Biological Diversity then filed a lawsuit alleging the NEPA and NFMA breaches. The environmental groups sought a preliminary injunction to prohibit logging, but District Court Judge Morris England denied the request. Shortly thereafter, the Ninth Circuit issued an emergency stay while the groups appealed England’s ruling on the preliminary injunction. In a decision issued at the end of 2003, the Ninth Circuit ruled that England had applied the wrong legal standard. The Ninth Circuit determined that the preliminary injunction was warranted and sent the case back to England for further proceedings. Specifically, the Ninth Circuit ruled that England’s assessment of the "possibility of irreparable injury" if logging were to occur during the litigation was wrong. England ruled that the environmental groups had "failed to show that measures already in place … will not afford sufficient protection" and that the groups had "failed to identify any concrete probability of irreparable harm." This was the wrong legal standard for weighing a preliminary injunction, according to the Ninth Circuit. "The irreparable injury question in this case … turns on the likelihood of that injury occurring," Judge Thomas wrote. England focused on the Protected Activity Centers (PACs) but failed to consider the possibility of irreparable harm to important habitat areas outside the PACs, according to the Ninth Circuit. The appellate panel further ruled that the environmental groups showed an adequate possibility that they would win the case on its merits. In fact, the court found that the Forest Service’s decision to de-list one PAC and allow logging there despite the existence of two spotted owls was likely a violation of the NFMA. The Forest Service also did not adequately address cumulative impacts on owls, as required by NEPA, the court held. In a concurring opinion, Judge John Noonan said that the Forest Service should be disqualified from approving the logging because of a financial conflict of interest. Some of the profits of timber sales help fund local Forest Service offices, he noted. "A bureaucracy protecting its turf and cherishing the number of its employees and the extent of its empire can have as lively a bias toward its budget as any old-fashion venal politician might have in his pocketbook," Noonan wrote. In a dissent, Judge Richard Clifton said he would uphold the district court decision. "The reality is that a fire devastated Eldorado National Forest, leaving the Forest Service to decide how to make the best of a bad situation," Clifton wrote. "There really is not inherently a public interest value in ‘preservation,’ when what is to be preserved is that bad situation. Reasonable people can disagree on what approach would be best for the forest, the owls, the environment, and the public interest generally. But the responsibility for making the decision has been assigned to the Forest Service, and it does not appear that the Forest Service — or the district court — disregarded the public interest or acted arbitrarily and capriciously in making the judgment that it did." The Case: , No. 02-16999, 03 C.D.O.S. 10658, 2003 DJDAR 13497. Filed December 11, 2003. The Lawyers: For Earth Island Institute: Rachel Fazio, (530) 273-9290. For USFS: Edmund Brennan, Department of Justice, (916) 554-2700. For Sierra Pacific Industries: David Martinek, Dun & Martinek, (707) 442-3791.

A proposal to close Buchanan Field airport in Concord to allow development of housing, public facilities and other urban uses has divided two of Contra Costa County’s largest developers. The proposal also appears to be dividing the county, which owns and operates the airport, and the City of Concord, in whose sphere of influence the airport lies. On opposite sides of the issue are Shapell Industries and Seeno Construction. Shapell has expressed an interest in developing the airport site; Seeno opposes the idea, in part because the company has developed more than a 1 million square feet of office space along the I-680 corridor, near the airport. Tenants see the airport as a local asset, according to Seeno. Everyone involved agrees that the airport’s status will not change anytime soon. Shutting down the airport requires approval of the Federal Aviation Administration, which would allow the closure only if it were part of a plan to enhance regional aviation. The early proposal is for the county to greatly enhance the Byron Airport roughly 30 miles to the east and possibly build a new facility elsewhere. Even so, no one believes that it will be easy to convince the FAA, which can be very protective of urban airstrips. In December, the Board of Supervisors directed a team of staff members to prepare a request for proposals. Supervisors are scheduled to consider the RFP, which is still being written, in April. The RFP will likely ask respondents to explain how they would develop the site, how they would pay back past federal aviation grants, how they would provide for aviation needs, and how they would make every party fiscally whole, said Patrick Roche, a principle planner for the county. Supervisors allocated $50,000 from a developer-funded, long-term planning account to pay for the initial RFP process and background work. Simultaneously, the county is updating its airport master plan. Buchanan Field’s location is driving the discussion. A former World War II facility that the county acquired in 1947, the 500-acre airport is surrounded by urban development in thriving central Contra Costa County. Supervisor Mark DeSaulnier says that the county should consider using the site to help satisfy the area’s intense demand for housing. The site is surrounded by freeways, is near an existing BART line and is within a few miles of job centers in Concord, Pleasant Hill and Walnut Creek. Plus, expanding the airport is probably not realistic because of the adjacent development, DeSaulnier and others say. "It’s 500 acres in the middle of this fast-growing region," said Roche. "I think a lot of people are asking if this is the highest and best use of the land. There is a sense that this airport is limited to general aviation use and a limited amount of commercial use." Buchanan Field has not had commercial passenger service since the early 1990s, and there are doubts about whether passenger service would ever be practical in the future, Roche said. As of now, Buchanan provides mostly for general aviation and corporate air travel. Another consideration is safety. During the 1985 Christmas shopping season, a twin-engine plane flying in foggy conditions crashed into Sun Valley Mall — located only about one mile from a Buchanan runway. The crash killed seven people, including four mall patrons, and seriously injured 17 other people. Shapell Industries Vice President Tom Koche said the company has begun background work in preparation for responding to the RFP. "At this point, we’re enthusiastic about considering the site," Koche said, noting the unique nature of a flat, 500-acre infill site in central Contra Costa County. "It’s a great opportunity to do a lot of things the planning community and the environmental community have tried to do with regard to redirecting the housing growth," Koche said. A project would amount to infill on a brownfield site near numerous modes of transportation, he noted. "We’re clearly not meeting the demand, especially at the affordable end of the spectrum," he said. DeSaulnier in particular has emphasized the possibility of extensive affordable housing development on the airport site. For decades, the suburbs of central and eastern Contra Costa County offered some of the Bay Area’s least expensive real estate. However, the county’s median home price has reached nearly $400,000 — and the central part of the county is often more expensive yet. The National Low-Income Housing Coalition now ranks Contra Costa as the sixth most unaffordable county in the United States. Still, warned Koche, the Buchanan Field project would involve far more than simply closing the airport and building houses. Developers and the county would have to ensure there are no losers, meaning that improved airport facilities would have to be provided somewhere. Opponents of closing Buchanan say there is no way to provide those facilities, so the county should expend its affordable housing efforts elsewhere. "Even if this were a good idea, it’s not going to happen," said Rick Norris, of Walnut Creek’s Archer Norris and an attorney for Seeno Construction. Buchanan’s location is not as bad for an airport as detractors contend, Norris said. The area usually has fine flying weather, while Byron is located on the edge of the Central Valley and frequently has wintertime fog. Plus, Norris said, Buchanan would be ideal for NASA’s proposed Small Aircraft Transportation System — a nationwide air taxi service that would provide direct, on-demand flights between most public-use airports in the country — because of the nearby concentration of offices. Byron is distant from the county’s existing center of commerce. Greater Concord Chamber of Commerce President and CEO Nicholas Virgallito said that a survey of members found 90% support for maintaining Buchanan. "I’ve had nothing but positive comments ", Virgallito said. "It brings business to the city and the county. It enhances the ability of some of our businesses to lease their buildings." Additionally, say airport backers, the facility is handy during emergencies and for transport of medical supplies. The county’s focus should be on enhancing Buchanan and bringing back passenger service, Virgallito said. "Workforce housing is very important, but not at that location," he said. Norris and others say the county should restart its efforts to get control of portions of the Concord Naval Weapons Station to allow for housing development. The military owns thousands of acres of grasslands at the lightly used facility, and local officials for years have tried — unsuccessfully — to get the military to release some of the property to accommodate urban development. The City of Concord has not taken an official position on the Buchanan proposal. However, during a presentation by DeSaulnier in January, members of the City Council said they want to keep Buchanan Field open. Concord Planning Manager Deborah Raines said she was unsure exactly where her city and the nearby cities of Pleasant Hill and Martinez fit into the county’s process. Because Buchanan Field is in Concord’s sphere of influence, the assumption is that the city would annex new development. But while there is obvious support for keeping Buchanan open, DeSaulnier and others contend that the facility is underperforming and that the number of people who benefit from corporate air service there is limited. And, because of budget and site constraints, there is no reason to believe Buchanan’s situation will change in the foreseeable future. Development of the site could potentially generate a large amount of money for the county to invest in more strategic air facilities. Shapell’s Koche declined to speculate how much Buchanan’s real estate might be worth, but he said it would be a large amount, even considering the risks associated with a 60-year-old airport site. Seeno’s Norris, however, said those risks should not be understated. The site, like any old airport, is very likely to have contamination, he said. Plus, the county or developers would have to buy out all existing leases and put a substantial amount of money into extending infrastructure. In the end, there might not be much money left for new air facilities, Norris warned. The issues Norris raises are exactly the sort of questions that RFP responses might answer. That RFP could hit the streets as early as this spring. Contacts: Patrick Roche, Contra Costa County advance planning division, (925) 335-1242. Office Supervisor Mark DeSaulnier, (925) 646-5763. Rick Norris, Seeno Construction attorney, (925) 930-6600. Tom Koche, Shapell Industries, (408) 946-1550. Nicholas Virgallito, Greater Concord Chamber of Commerce, (925) 685-1181. Deborah Raines, Concord Planning Department, (925) 671-3369.

The California Supreme Court has accepted a second case involving the application of coastal zone requirements. In January, the court voted to review a case in which the Second District Court of Appeal ruled that a state law requiring coastal zone developers to provide affordable units did not apply to a project in which all new houses would be located outside the zone. The state high court put the issue this way: "Does the term ‘housing development' — for purposes of the Mello Act requirement that a developer provide affordable housing, where feasible, when a new housing development is constructed within the coastal zone subject to the jurisdiction of the California Coastal Commission (Government Code § 65590) — refer only to the actual housing component of a project, or is the Mello Act applicable if some aspects of the project are in the coastal zone even if all of the actual housing is to be constructed outside the coastal zone?" The Second District Court of Appeal answered that question in the negative. In a 2-1 ruling, the court held that developers of a 114-lot project in Los Angeles did not have to comply with the Mello Act's affordable housing mandate (see , November 2003). Although the coastal zone boundary splits the 45-acre project site, the only portions of the development inside the coastal zone would be a road, utilities and erosion control facilities. The case is , No. S119897. Last year, the Supreme Court voted to review a separate case involving the same project. In that case, the Second District held that the Coastal Commission could not consider the environmental impacts to areas inside that coastal zone that result from development of the proposed houses outside the zone. That case is , No. S116081.

The booklet titled "Accessory Dwelling Unit Manual" may not hit bestseller list any time soon. Published last month by The City of Santa Cruz, the booklet does not sound all that impressive: It is a how-to guide for the design, construction and operation of rental apartments, best known as "second units" or "granny flats," located in the back yards or atop the garages of conventional single-family houses. Whether or not the ADU Manual makes the Oprah show matters little. This unprepossessing little booklet is dynamite because it promotes the least popular type of housing in California. Santa Cruz would be noteworthy simply for tolerating the units (see , August 2003). Going further and actually advocating for granny flats is an enlightened gesture, and perhaps an act of political courage. To understand why I am impressed, one need go to a neighborhood homeowner’s association meeting almost anywhere in California. Just as one does not shout fire in a crowded room, one does not dare suggest that granny flats are a good idea at a homeowner’s meeting, unless you want to wear a tiara made out of brickbats. Few issues are as irrational — or hypocritical — among certain homeowners as that of second units. Irrational, because people believe that their neighborhoods will be degraded by the presence of these extra units, as if a rental unit for a student or a single school-teacher in the backyard were equivalent to an apartment house. Hypocritical, because many California cities are awash in illegal second units. Los Angeles alone probably has tens of thousands, if not hundreds of thousands, of illegal second units. Few homeowners will build legal second units, however, because most cities impose onerous conditions, such as two off-street parking spaces in addition to the two off-street spaces that the single-family residence is already required to have. So forget about converting the garage as a place for your divorced sister-in-law and her kid — unless you want the back yard to become a parking lot, which is probably against the zoning code anyway. The bizarre emotions surrounding granny flats are all the more unfortunate because second units are arguably the most equitable way of increasing density across an entire neighborhood or city. The alternative is to create a two-tier society of people who live in very low density, single-family neighborhoods, and people who live in very high-density apartment complexes located on major thoroughfares. While there is nothing wrong with high-density apartments, renters should have a choice of housing. So why are granny flats unpopular? As always, density is the bugbear. The conventional argument is that second units contribute to tight parking and traffic. Probably true. But the solutions to traffic problems lie in public transit, not in restrictions on housing. Second units provide an additional — and voluntary — housing resource in crowded California cities, and one that can help working families pay for ever-more-expensive homes with the help of a rent check each month. The Santa Cruz booklet goes beyond the theoretical. The booklet itself is worthy of attention for both the clarity of its writing and the diagrams. (The booklet can be viewed online at www.ci.santa-cruz.ca.us/pl/hcd/ADU/order.html .) Paid for, in part, by a $350,000 grant from the State Treasurer’s Sustainable Communities Grant and Loan Program, the manual is written in ordinary language. The topics cover everything from how to figure the size of the second unit based on the size of the house, to the range of different architectural styles that can be accommodated within a single envelope. One particularly interesting diagram shows the ideal placement of granny flats along the three street types typical of Santa Cruz, including "traditional," "transitional" and "postwar." This diagram shows the depth of thinking that went into this planning exercise: This is a design for entire neighborhoods and districts, rather than for individual lots. The intent is to protect the integrity and scale and streetscape of neighborhoods. In this way, the how-to book on fitting a second unit into the backyard becomes an exercise in urban design, or how to increase density in existing neighborhoods without destroying them. Accompanying the book is a second publication that features plans for seven different models of accessory apartments. The same city program offers technical assistance to homeowners, including low-interest loans to homeowners who agree to rent their granny flats at affordable rates. Now, good design is not rare or hard to find. But it is rare to see intelligent design integrated into what is essentially a planning document. This booklet comes into being at a time when a growing group of architects and city planners are talking about what is called "form-based" building codes, which are opposed to traditional "use-based" building codes. The basic idea is that planning should promote definite kinds of city form, rather than abstract zoning formulae that are concerned entirely with density ratios and uses. While the ADU Manual is not a planning document, the easy-to-understand approach to civic design contains a hint of what form-based planning might look like, wherein everybody, not just architects and developers, will be able to understand what is and is not permissible to build. Even if the ADU Manual is not promoted on Oprah, it would be worthwhile for this booklet to circulate throughout the state as an example of critical thinking. People who are interested in preserving neighborhoods in the face of development pressures might do well to study the booklet and learn how cities can introduce new housing into built-out neighborhoods without destroying them.

An appellate court has found the state liable for costly damages to property in Yuba County as the result of a 1986 Yuba River levee failure. The decision arrived within days of Gov. Schwarzenegger's reduction of $105 million from local flood control project budgets, and the decision comes as construction of thousands of homes in the same floodplain proceeds. The unanimous three-judge panel of the Third District Court of Appeal based its ruling on the theory of inverse condemnation. Essentially, because many people with billions of dollars worth of property rely on the giant Sacramento River Flood Control Project, all landowners — not only those who were harmed — should carry the burden of the plan's failure, the court ruled. The court sent the 17-year-old case back to the trial court for a decision on damages. About 3,000 landowners initially sought $120 million to $150 million in damages. With interest, that amount could easily top $300 million. The appellate court also awarded the landowners all attorneys' fees and litigation costs, estimated at more than $10 million. In February 1986, the Linda Levee failed, inundating the unincorporated communities of Linda and Olivehurst, south of Marysville. The levee was originally built by Yuba County in 1904 and 1905, when men with horses heaped soil on top of mining debris near the river. Over the years, the levee apparently was upgraded but, according to one witness, never met any engineering standards. The state and federal governments took over the flood control project during the 1920s, and the state assumed sole control three decades later. In 1970, Reclamation District 784, which maintains the levy for the state, warned that the levy may not withstand "violent river flows." In 1986, the levy failed despite carrying only half of its capacity. In an earlier round of the case, the Third District upheld a jury verdict that the state was not liable based on the dangerous condition of a public facility ( , 74 Cal.App.4th 68). But the Third District sent the question of inverse condemnation back to the trial court. Yuba County Superior Court Judge John Golden ruled that the state was not liable based on inverse condemnation, either. The case then returned to the Third District, which reversed Judge Golden. "A public entity cannot be held liable for failing to upgrade a flood control system to provide additional protection," Justice Fred Morrison wrote. "But the trial court found the levee was built with porous, uncompacted mining debris, in a location which encouraged seepage, leading directly to the failure of the levee, and that long before the failure, feasible cures could have fixed the problems." The state argued that the levy failed as a result of natural causes. But the Third District disagreed. "In this case the evidence overwhelmingly shows the failure of the levy was foreseeable," Morrison wrote. "It operated the levee for three-quarters of a century and had ample opportunity to examine it. If it chose not to do so for fiscal reasons, that would indicate the loss should be absorbed by the state." The Case: , No. C040533, 03 C.D.O.S. 10309, 2003 DJDAR 12879. Filed November 26, 2003. The Lawyers: For Paterno: Gary Livaich, Desmond, Nolan, Livaich & Cunningham, (916) 443-2051. For the state: Sterling Smith, attorney general's office, (916) 445-0378.

An appellate court has rejected the argument that a project leading to the loss of farmland should have been mitigated with the establishment of agricultural easements on other farmland. The ruling came in a lawsuit regarding development of a large state prison near the San Joaquin Valley town of Delano. The environmental impact report determined that the prison would convert 480 acres of farmland to institutional uses, and that other projects would convert another 1,820 acres of farmland. The California Department of Correction (CDC) found that no mitigation was feasible and adopted findings of overriding consideration. But project opponents contended the EIR did not analyze or discuss feasible mitigations, such as agricultural easements over important farmlands in the vicinity of the proposed prison. A unanimous three-judge panel of the Fifth District Court of Appeal rejected opponents' argument. "At best, such as easement might prevent the future conversion of some as yet undefined parcel of farmland to a nonagricultural use. Although appellant might deem this to be a desirable result, appellant's desire for such a result does not turn appellant's proposed action into mitigation of the cumulative impact on farmland of this project and of the past, present and probable future projects properly considered ", Presiding Justice James Ardaiz wrote for the court. The decision worries proponents of agricultural easements, who fear that the ruling establishes a black-and-white precedent for projects that impact farmland — giving proponents the choice of no project or no mitigation. Numerous groups have asked the state Supreme Court to depublish the decision, meaning it could not be used as a precedent. In 1995, the Department of Corrections certified an EIR for a 4,180-inmate, 400-acre prison in Kern County near the existing North Kern State Prison in Delano. However, the state did not fund "Delano II." Four years later, the governor signed urgency legislation authorizing construction of Delano II. Corrections then prepared a subsequent EIR (SEIR) on a project that had grown to 5,160 inmates and 480 acres. The agency certified the EIR in June 2000. Three organizations sued Corrections, alleging several violations of the California Environmental Quality Act (CEQA). The Kern County Superior Court kicked out two of organizations — Critical Resistance and the Prison Law Project — because they lacked standing. But Friends of the Kangaroo Rat was allowed to proceed with the litigation. Eventually, Kern County Superior Court Judge Roger Randall upheld the EIR except for the an analysis of the cumulative impact of farmland conversion. The Department of Corrections then revised the cumulative impacts analysis (RCIA), adopted a new SEIR in December 2001 and asked Judge Randall to dismiss the lawsuit. In April 2002, Randall ruled that the RCIA was acceptable and he dismissed the lawsuit. Friends of the Kangaroo Rat appealed. In a partially published opinion, the Fifth District upheld the lower court's decision. The Fifth District published only the portion of its opinion addressing the issue of farmland conversion. The SEIR found that the cumulative impact on farmland conversion from the prison and from past, present and probable future projects was a significant impact that could not be mitigated. Friends of the Kangaroo Rat commented on the SEIR when the document was circulating, saying the conclusion was not supported by evidence in the record. Friends suggested creating agricultural easements as a mitigation. A response in the final SEIR called the suggestion "novel" and said an easement would not mitigate the impact because it would neither create new farmland nor compensate for the loss of farmland. The SEIR also stated that creating new farmland on the valley floor was infeasible because it would likely impact habitat for rare species such as the Tipton kangaroo rat, and that reverting developed land to farmland was also infeasible. Friends made its same arguments to the Fifth District but got no further. "The CDC correctly observed that once the prison is built and the 480 acres of farmland at that site have been converted to what the RCIA calls ‘an institutional use' (i.e., a prison), the 480 acres of farmland will be gone," Justice Ardaiz wrote. "Similarly, when the 2,300 acres of past, present and probable future projects are completed, 2,300 acres of farmland will be gone. The only option for ‘mitigating or avoiding the project's contribution to' loss of farmland would be to not build the prison. This is in essence the ‘No project alternative' which was required to be discussed in the SIER and which was in fact discussed." Even if farmland easements were deemed to be mitigation, the court continued, Corrections explained why they easements were not feasible. "A public agency ‘need not, under CEQA, adopt every nickel and dime mitigation scheme brought to its attention or proposed in the project EIR,'" Ardaiz wrote, citing , (1993) 12 Cal.App.4th 1773, 1809 (see , July 1993). In the longer but unpublished portion of its opinion, the Fifth District rejected Friends' arguments regarding water and traffic impacts. The court said the water concerns were "deemed waived" because they were not raised when Corrections was preparing and reviewing the environmental documents. The cumulative impacts on traffic also had not been raised administratively, the court ruled. Besides, the court held, the SEIR adequately addressed the cumulative traffic impacts. Since the Fifth District issued its ruling, a number of environmental, open space and farming groups — including both the California Farm Bureau Federation and the Sierra Club — have urged the state Supreme Court to depublish the decision. Agricultural easements have been proven to be successful mitigation for development that converts farmland to urban use, said Alvin Sokolow, a University of California, Davis, professor and authority on agricultural easements. Properly placed easements can prevent the additional loss of farmland, said Sokolow. Several cities and counties in California require developers that build on farmland to acquire farmland easements "This decision basically removes the mitigation option," said Sokolow, who has asked the Supreme Court to depublish the decision. Meanwhile, development groups and the League of California Cities have urged the state high court to leave the decision alone. As of late December, the Supreme Court had not issued a ruling. The Case: , No. F040956, 2003 DJDAR 10597. Filed August 18, 2003. Partial publication ordered September 16, 2003. The Lawyers: For Friends: Babak Naficy, (310) 473-8899. For the state: Meg Halloran, attorney general's office, (916) 323-8549.