The premise behind the categorical exemptions in the California Environmental Quality Act for infill and single-family projects is that projects in relatively dense, established urban areas are unlikely to create major impacts. According to a recent decision, this premise has its limits.   The City of Berkeley is not known for lavish hillside homes the way that, say, Beverly Hills is. And yet, recently the city's Board of Zoning Adjustment had granted a categorical the construction of what can only be described as a mansion. Community members fought the project, filing Berkeley Hillside Preservation v. City of Berkeley .  Property owners had applied for permits to demolish an existing home on a 29,714 square foot lot and to construct a 6,478 square foot home along with an attached 3,394-square foot, 10-car garage. The lot is a hillside lot with an approximately 50% grade. Based upon CEQA exemptions for infill and for construction of new small structures, the Board of Zoning Adjustment approved the permits.  The proposed construction was supported by neighbors, but other interested parties appealed the approvals to the City Council, claiming that the CEQA exemption was granted inappropriately. A geotechnical engineer, Dr. Lawrence Karp, submitted a letter indicating that he had reviewed the building plans, and that he was familiar with the site based upon his work on other building sites in Berkeley. In the letter, Karp contended that additional benching would be required, that this was not reflected on the plans, and that the site potentially had some exposure to seismic risk. Karp also indicated that additional vegetation removal was required that was not otherwise reflected on the plans. Karp concluded by indicating that the project would likely have significant impacts during construction and operationally due to seismic risk.  Two engineers submitted letters on behalf of the applicants (at least one was a geotechnical engineer). They argued in part that Karp misread the plans and that the project was appropriate for the site. The City Council was presented with conflicting evidence as to relative size of the proposed structure to other homes in Berkeley. The City Council denied the appeal, and the opponents filed suit. The trial court ruled for the city and applicant, and the neighbors appealed again. The key issue on appeal was whether or not the city appropriately applied a CEQA exemption in light of all of the evidence. The appellate court indicated that judicial review requires a two-step inquiry. First, the court determines if there are unusual circumstances. As applied here, the appellate court found that the evidence was that the construction was unusual based upon size. The evidence most favorable to the city was that less than .4% of existing homes in the city were larger (although the record included less favorable evidence as well). The city argued that the relevant consideration in determining unusual circumstances was the vicinity of the proposed construction, and from this perspective, the proposed size was not unusual. Rejecting this approach, the appellate court directed that the proper point of focus was the broader category of similar structures for which the exemption was intended, not just those in the vicinity.  Once this test is satisfied, the inquiry shifts to whether "there is a reasonable possibility that the proposed construction will have a significant effect on the environment due to the unusual circumstances of its size." The appellate court found that the opponents had made the requisite showing of a fair argument through the Karp letter. The fact that there was evidence in favor of the city's decision was not conclusive under the fair argument test. Accordingly, the appellate court determined that an EIR was required. Comment:  The issue at hand is not whether or not a property owner has an inalienable right to build a ten-car garage or a 7,000-square foot house. What is important about this decision is that it highlights the barrier that CEQA poses to infill and to the revitalization of existing urban areas. CEQA prioritizes the status quo over change. If we are serious about creating vibrant urban communities, then we need vigorous CEQA reform. It's not rocket science to figure out why development steadily marches onward at the suburban fringe: defenders of the status quo file CEQA lawsuits, cows rarely do.  The Case:  Berkeley Hillside Preservation v. City of Berkeley (February 15, 2012, A131254) 203Cal.App.4th 656. The Attorneys:  For Appellants: Susan Brandt-Hawley For Respondents City of Berkeley: Zach Cowan, City Attorney, Laura McKinney, Deputy City Attorney For Respondents and Real Parties in Interest Mitchell  Kapor, Freada Kapor-Klein, and Donn Logan: Myers, Nave, Riback, Silver & Wilson, Amrit S. Kulkarni, Julia L. Bond William W. Abbott is a partner in the Sacramento law firm of Abbott & Kindermann, LLP.

The definition of wetland would seem to be self-evident: wet land. If only it were that easy in California.  From vernal pools that slowly diminish in the Central Valley heat to brackish estuaries separating ocean from land, California's topography includes some of the most varied types of wetlands imaginable. Their numbers and varieties baffle that which governmental regulations such as the federal Clean Water Act describe.  A new proposed policy, released in preliminary draft form by the Water Resource Control Board, seeks to preserve the state's remaining wetlands and tighten controls over how permits to impact wetlands are issued.  The product of seven years of discussions and scientific study, the Preliminary Draft Wetland Area Protection Policy—based, in part, on the federal definition—is being hailed by environmentalists but already raising anxiety among developers. It defines wetlands according to the following criteria:  • is continuously or recurrently inundated with shallow water or saturated within the upper substrate;  • has anaerobic conditions within the upper substrate caused by such hydrology; and  • either lacks vegetation or the vegetation is dominated by hydrophytes. These criteria were recommended by the Water Board's Technical Advisory Team, which consisted of a team of 15 scientists with expertise in various aspects of wetland ecology and geology.  Only 9% of the state's wetlands remain as compared to the days of Spanish settlement. For much of the 20th century, the policies of the state and of the Army Corps of Engineers was to fill wetlands in order to make lands arable and developable. This policy seeks to reverse that trend while preserving the diversity of the state's wetlands. In order to account for unusual wetlands that occur in California's arid climate, the definition includes the following caveat: "Places lacking vegetation but otherwise meeting the hydrology and substrate criteria for wetlands are defined as wetlands…(to include) tidal flats, playas, some river bars, and shallow non-vegetated ponds." That accounts for some of the more arid regions of the state and some of the wetland types that typically don't have vegetation," said Eric Stein, Biology Department Head at the Southern California Coastal Water Research Project and member of the Technical Advisory Team.  The draft policy also includes a wetland delineation method, a wetland assessment and monitoring framework, and authorization procedures for dredge and fill discharges to waters of the state The draft has been released "for information purposes" and will not be subject to public comment for several more weeks. Water Board officials expect that it will undergo revision before the board votes on a final draft.  Though rhetoric cannot capture every variation and account for every potentially valuable natural resource, scientists say that this definition will serve the desired purpose, especially compared to status quo. Thus far, the state has not adhered to an official definition. Different agencies, from the Coastal Commission to the Department of Fish and Game, have often relied on their own notions of what constitutes a wetland.  As a result, say state officials, the process for protecting wetlands—or, conversely, for issuing permits to dredge, fill, and discharge—has been haphazard at best.  "It's difficult to manage a resource without knowing exactly what it is and being able to identify exactly what it is," said Bill Oreme, chief of the Water Board's Wetlands and 401 Unit.  The Water Board ordered the drafting of the new policy with three goals in mind: 1) establish clear, uniform criteria for the application, review, and approval of permits to discharge dredged or fill material to waters of the state; 2) to achieve no net loss of wetlands; 3) provide a common framework for the monitoring and assessment of wetland areas.  All of these goals hinge on the definition of what a wetland is, but some say that the new definition does not go far enough to achieve them. "We think it's far too narrow," said Colin Kelly, state attorney at Orange County Coastkeeper.  "If you look at other sections of California state regulations, there aren't as many qualifiers on what a wetland is." Kelly said that those qualifiers could end up excluding important resources.  Until recently, the Clean Water Act was interpreted to cover a wide variety of wetlands, but no longer.  The federal government's definition has prevailed over waters covered by the Clean Water Act. But even that has been a moving target, thanks to a pair of recent Supreme Court decisions—Solid Waste Agency v. U.S. Army Corps of 2001 and Rapanos v. U.S. of 2006—that ruled that the act applied only to tributaries of navigable waterways. This ruling effectively reduced the amount of waters that fall under the protection of the Clean Water Act and forced the state to enact its own policy to protect important waters that are now excluded from the CWA.  State officials could not merely adopt federal standards, and apply them to all potential waterways in the state, because of the variety and relative preciousness of the state's wetlands. Biologists contend that wetlands often serve as crucial habitats for all manner of species, particularly migratory birds. Thus, even an ephemeral vernal pool could provide safe harbor in an otherwise arid landscape. Meanwhile, coastal wetlands are considered valuable for flood control, water filtration, and recreation.  Though officials stress that the policy and definition remain in draft form, developers are anxious about changes that could arise if and when a final version is adopted.  "Our principle concern is the potential duplication of federal, state, local regulations," said Mike Winn, president and CEO of the Building Industry Association of California. "It's already a very complicated process and this doesn't seem to be simplifying matters at all.  It contradicts and makes what for decades now has been a painful but at least somewhat predictable process less predictable." The board also hoped to bring its definition of wetlands in line with that of the Clean Water Act; however, some say that there are enough discrepancies – such as the occasional exclusion of the vegetation criterion – that permit applicants may end up doing more work.  "We have a really serious concern with the process of having to go through two wetland permitting processes, not just one," said Winn. "It looks to me like it may be just enough different to make it confusing…and perhaps burdensome," said Elizabeth Lake, partner at the law firm of Holland & Knight.   Despite the trepidation that many developers feel any time the state changes a policy, state officials insist that the new policy might actually ease the burden on developers who apply for permits. Officials say that the new definition will neither increase nor decrease the amount of resources that lie under the state's protection, and they have pledged to make the permitting process more streamlined.  Thus, developers will not necessarily find more lands off-limits, and even if applications are to be denied, they will be denied more quickly than they are under the current system.  "There's going to be no difference between what we presently have jurisdiction over and the condition after the policy," said Oreme.  "What you're going to see is that areas that are regulated today are probably very similar to areas that are regulated under this policy," said Stein.  Oreme said that currently each of the state's nine Regional Water Boards follow their own criteria, meaning that any developer who works in more than one region faces different policies.  "I think developers should find a lot of advantages to this policy," said Oreme. "This policy will establish a set of criteria that will be uniform across all water boards."  Although the Supreme Court took many wetlands out of federal jurisdiction under Section 404 of the Clean Water Act, many wetlands areas remain federally protected. The Water Board has made efforts to ensure that its new definition matches up with that used by the Army Corps of Engineers. In cases when the jurisdictions overlap and a developer must submit applications to both a regional water board and to the Corps.  The Corps has therefore been involved with the drafting of the new policy and has pledged its commitment to facilitate an efficient permitting process.   "We will continue to work with the State on its proposed policy to reduce duplication, streamline reviews and make decisions about protecting wetlands that are consistent and reasonable, and plan to submit further comments once the Draft Policy is open to formal public review," said Michael Jewel, regulatory chief for the U.S. Army Corps of Engineers Sacramento District. Despite the state's mandate to incur no net losses, both the Corps' and the Water Board's statements of purpose indicate that they are committed to "reasonable economic development."  Contacts & Resources:  State Water Resources Control Board Clean Water Act Section 401 Program Colin Kelly, Staff Attorney, Orange County Coastkeeper, 714.850.1965 Elizabeth Lake, Partner, Holland & Knight, 415.743.6969 Bill Oreme, Chief, Wetlands & 401 Unit, State Water Resources Control Board, 916.341.525 Eric Stein, Biology Department Head, Southern California Coastal Water Research Project, 714.755.3233 Mike Winn, President & CEO, Building Industry Association of California, 916.443.7933

The fate of thousands of would-be redevelopment projects now rests in the very busy hands of the California Department of Finance. Working with an augmented crew, the department has so far received roughly 200 Recognized Obligation Payment Schedules (ROPS) and has so far sent back roughly 20 for review by their respective successor agencies. Letters such as these ( pdf ) have gone out to those cities so that they can amend their ROPS or justify the listed expenditures.  Department spokesperson HD Palmer could not offer definitive specific numbers in part because the action has been furious this week. Successor agencies were supposed to have submitted their ROPS to DOF by April 15. Not all of them submitted on time, however, so more ROPS are arriving by the hour. DOF has three days to review and respond to ROPS, all of which must be reviewed by May 1 at the latest are to pay their bills.  "It's in their interests to submit them because, under the provisions of the bill, expenditures can't be made after May 1 unless they're approved," said Palmer.    ROPS are the list of projects that successor agencies believe to be eligible for continued funding under AB X1 26, the law that ordered the dissolution of redevelopment agencies and guides the wind-down process.  Finance is charged with making sure that all tax increment monies go back to the state, such as AB X1 26 allows. The means that they are on the lookout for projects that were approved after a June 27, 2011 deadline or, commonly, loans made to cities by redevelopment agencies after the governor announced his intention to dissolve agencies in January 2011.  Some cities whose ROPS are under review include:  Riverside, with over $150 million in expenditures that DOF claims do not adhere to AB 1X 26; they include over $100 million in loans and grants made between the city and redevelopment agency Scotts Valley, with $3.6 million in loans to the city Orange, with $7 million for a project not approved until November 2011 San Leandro, with a $2 million loan and nearly $9 million in cooperative agreements If Finance ultimately refuses to approve funds for these items -- and similarly questionable expenses at other cities -- the projects will be among the thousands of redevelopment projects that are already moribund.   With roughly 400 successor agencies and ROPS's varying in length -- from hardly any projects in small towns to potentially thousands in large cities -- the department has called in reinforcements. "We knew we were going to have to do a significant amount of review in a relatively limited time frame. That's why we a) redirected members of our audit staff to work full-time on this, and b) brought back some retired (employees)," said Palmer. "We're confident that we'll be able to do the kind of reviews that are necessary." Palmer said that roughly 60 staff people are working full-time to address the flood of ROPS.

Yesterday, at Day Three of the APA's National Planning Conference, a panel of planning directors and other city officials from Southern California cities offered their take on a range of issues – good and bad – that cities in the region are facing. The panel was designed for a non-California audience, and the panelists' take on statewide trends was telling.   A few highlights:  Nowhere is the housing crisis more acutely visible than in the Inland Empire, where M. Margot Wheeler presides over Community Development for the City of San Bernardino . She spoke about the paradox of needing to build more affordable housing at the same time that vacant, underwater tract homes are rotting on their foundations:  "Was the housing meant to be affordable or did it just become that way? Affordable housing is the flip side of redevelopment. It's the 20% set-asides.  Redevelopment is about chasing the almighty dollar of sales tax and fiscalization of land use: car dealers and regional malls. Single-family housing never pays for itself." "With the demise of set-asides, the likelihood of developing affordable housing is going to be a more onerous task than it ever was before." Wheeler suggested the development of accessory units such as granny flats and garage units, even though they often run afoul of zoning codes and draw the ire of residents. But she said those voices must not be allowed to hold sway and insisted that the "retrofit of existing neighborhoods is going to be crucial."  Kathleen Garcia, planning director in Del Mar , had some choice words for public participation and, implicitly, for NIMBYism. She began by describing a one-acre development that – in a city of just over 4,000 residents – was subject to 68 public meetings and then had to go to a popular vote. She noted that the residents who would stop a development like that do not necessarily represent the entire community.  Fullerton planning director Al Zelinka offered some incisive commentary about the relationship between government and constituents. At first blush, he seems to be levying harsh criticism on residents for being ignorant. But that's only half the story. He's also implying that government needs to be more clear and, if it wants constituents who can offer useful input, it has to take initiative to educate them.   "It's amazing to me how uninformed, uneducated, unaware the public is about where the money comes from, how it's supposed to be used, and how the budgeting process happens…. This moment of economic hardship is our time to have an informed, educated public and to lead the conversation about where our city is going to go." Representing "America's Finest City"—which he said had been rechristened "Enron by the Sea," San Diego development services director Kelley Broughton, spoke about the challenge of measuring success. Performance metrics are always tough in the public sector, which does not follow the benchmarks of profit and loss. "In private sector, you're focused on getting things done.  In public sector, it's harder to tell." Broughton noted that the city has "put in tools 20 years ago that haven't been used yet," meaning that no matter how good the tools are, it's impossible to yet give them full credit.  Alan Bell, deputy planning director in Los Angele s, was asked to speak about the California Environmental Quality Act, whch he described as "the law that we love to hate."  "The whole environmental clearance process has been seized by those who want to stop projects.  CEQA is the weakest link and the most expeditious way to stop a project. It's not about good planning or about what is good for a particular community. It's about trying to meet one's own agenda." "For big cities, that's ironic, because urban infill makes the most sense.  We want to preserve deserts and farmland. That means developing in areas that have the infrastructure to support that. Yet CEQA enables contestants to subvert that process." To illustrate what he considered the absurdity of CEQA, Bell cited the recently released 10,000-page environmental report for Los Angeles' proposed Farmers Field football stadium. "Who is going to read?" he asked. "No one." Bell noted that CEQA's scale contradicts the very mission of forward-thinking planning: "The whole law is oriented towards project planning, not community planning. So it's not serving the larger purpose that planners want." Amy Bodek, director of development services and former redevelopment director in Long Beach , illustrated the bureaucratic impacts of the demise of redevelopment. She spoke of layoffs, reassignments, and other tumult associated with disbanding a department that had previously been humming along with a $120 million annual budget.   Santa Monica planning director David Martin spoke about his city's process for creating development agreements for projects that are not being developed by-right. He described an idealized sequence by which an agreement is discussed at no fewer than seven meetings, before bodies including the planning commission and city council. He admitted that, in reality, the more controversial a project is, the more likely it is to require far more discussion.  Carol Barrett, community development director in Berkeley , said that she once half-jokingly asked her city manager if she could "Ignore email sent between 1am and 5am." She said that, for the most part, "it was not persuasive, reasoned discourse" that, she felt, was not productive for the palnning process. But Barrett said she continues to heed all public input because "we persist with public engagement because it's the right thing to do.

LOS ANGELES -- For all the efforts that California has expended to embrace regional planning , it turns out that regional planning may already be outdated.  At this morning's APA National Conference session on "megapolitan America" Robert Lang of the University of Nevada-Las Vegas posed a question: "What the hell does Reno have to do with San Francisco?" What the hell, indeed.  According to Lang and the University of Utah's Chris Nelson, co-authors of the recently published Megapolitan America: A New Vision for Understanding America's Metropolitan Geography , California's capital of tech, sophistication, and urbanity ought not ignore the northern Nevada capital of bowling, divorce, and sprawl – nor vice-versa. According to Lang, anything that happens in San Francisco, or, more specifically, the Port of Oakland, has direct impacts on the economy of Reno. The more ships that come into the port—which was dredged a few years ago, with an immediate increase in traffic – the more trucks and trains pass through Reno, where they unload cargo for redirection to all points throughout the intermountain West.  Nelson's and Lang's point is that the emerging units of economic growth—as well as environmental protection and transportation networks—are not cities, metro regions, or even MPO regions. They are "megapolitan" regions. They identify 23 megapolitan regions across the country, including the Sierra-Pacific region, plunging inland from San Francisco to Reno, and Southern California, stretching roughly from Santa Barbara to the Mexican border. These regions pursue the geographer's Holy Grail of grouping contiguous places according to function and affinity rather than by de jure political boundaries (cf. Joel Garraeu's Nine Nations of North America or Wilbur Zelinsky's Cultural Geography of the United States ).  Lang and Nelson claim that these regions already act as de facto economic, and, sometimes, cultural units whose components share common interests, complementary strengths, and overlapping commuting patterns.  They include everything from the Seattle-Portland region to Colorado's Front Range to the original "megalopolis" lining the Eastern Seaboard. Often, these regions function in spite of themselves.  In particular, American urban areas have not always embraced planning and coordination within discrete metro regions, much less between metro regions.   California's four biggest metro regions are already trying to reverse this trend, in the name of mitigating climate change. After four years of yanking and tugging, regional Sustainable Communities Strategies are coming to fruition, often with great fanfare (and sometimes, in the case of San Diego's SCS, some litigation for good measure).  If the thought, though, of creating inter-regional – and even inter-state – plans makes your head hurt, I'm sure you're not alone.  For starters, California and Nevada do not exactly like each other. They can't even agree on how to preserve the one undisputed jewel that they share: Lake Tahoe . On all other matters, California tends to treat Nevada with indifference and Nevada often treats California with derision. That's especially true in the Reno area, where faded casinos have suffered from the rise of Indian casinos in northern California.  Lang and Nelson point out, however, that northern Nevada's economy relies more on trucking than on gambling. "The logistics industry is the only thing holding Reno together," said Lang.  The eighteen-wheelers coming over Donner Summit therefore give the regions – the Bay Area, Sacramento, and northern Nevada alike – to cooperate. As Lang said of distinction between the economically linked cities of Phoenix and Tucson, "to a German looking to invest in solar energy, they're all just Saguaros and Circle K's."  You can only imagine what they'd think of Reno. But Lang's point is that it doesn't matter. Traffic is traffic and money is money. If California wants to prosper in the next generation, it not only has to figure out how to implement its regional plans well, but also how to create plans between regions. That means that ABAG, SACOG, and Washoe County need to reach out to each other, as do SACG and SANDAG. Daunting as this prospect may sound, at least California is ahead of the game, thanks to SB 375. We have a vocabulary for talking across political boundaries. I can only imagine what will happen when Boston tries to cooperate with southern New Hampshire, or Cleveland with Pittsburgh.  It's not like we in California don't have enough to do already, but if history is any guide, then there's plenty of reason to think that Nelson's and Lang's predictions of an inter-regional future will indeed come to pass.  Now someone has to tell Nevada.

You may not yet have heard, but tanks are massing on the border of Santa Clarita.  Special forces have ziplined into Poway city hall. Under cover of night, Jerry Brown himself stands resolute on the prow of a PT boat, his beloved corgi Sutter at heel, motoring up the American River towards Folsom. There, an unhinged planning director has gone native, grilling freshly slaughtered meat in a backyard. From atop the Coit Tower, you can hear it: the strafing has begun in San Rafael. May God have mercy on all our souls.  So implies the latest essay by Wendell Cox, "California Declares War on Suburbia," published in this past Saturday's Wall Street Journal. In it, Cox takes aim at Senate Bill 375, California's landmark law promoting compact development patterns for the purpose of reducing greenhouse gas emissions. Any regular reader of CP&DR knows that over the past year the state's "Big Four" metropolitan planning organizations--in San Diego , Los Angeles , Sacramento , and the Bay Area--have been producing regional plans to comply with SB 375 . Lamenting that 1.6 million people moved out of California in the 2000s, Cox contends that these plans will force housing prices up and thus drive more people out of the state.  SB 375 is naturally irresistible to Cox, the outspoken libertarian urban scholar who, on a roughly annual basis, announces the results of such-and-such new study or analysis that conclusively proves the evils of smart growth. (See CP&DR publisher Bill Fulton's response to Cox's previous volley.) What I've finally figured out is that, in his own mind, Cox does not dwell in the outer suburbs of which he is so fond. Rather, he seems to inhabit his own Frontier, an empty, windswept place where no one else will read his thoughts and, therefore, never discover their fallacies. Because if Cox did imagine that anyone would read his work, then he might for a moment consider that he puts up some pretty big targets. Think Moby Dick in a swimming pool.  In the latest go-round, Cox's logic follows a circuitous path, so it's best to respond roughly in order of the claims that he presents.  Since 2000 more than 1.6 million people have fled, and my own research as well as that of others points to high housing prices as the principal factor. SB 375 and AB 32 did not pass until 2008 and 2006, respectively. In the first half of the 2000s, developers could not build homes fast enough in California. So, yes, it must be the climate change regulations and not the incredible demand for housing that has driven prices up.  California has declared war on the most popular housing choice, the single family, detached home Let's not confuse most popular with most common. And let's not forget that the single-family home is most common because of the laws, regulations, and public investments that made it most common.  Metropolitan area governments are adopting plans… Here's his first whopper of a falsehood: metropolitan planning agencies are government agencies, but they are not governments. They have no police power and exert influence only to the extent that they control some transportation funding. And much of their policymaking depends on the consensus of their members: typically cities and counties, which are governments. Notably, MPO planners have based SCS's in large part on the general plans of these constituent jurisdictions. (Cox should know that the SCS of the Southern California Association of Governments was adopted on a unanimous vote; and, no, the suburban representatives were not bound and gagged in a back room.) … that would require most new housing to be built at 20 or more to the acre, which is at least five times the traditional quarter acre per house. Cox has built a career on an appealing but often useless observation: less dense areas promote efficiency because cars burn relatively less gas when they travel at consistent speeds on uncongested streets. This metric, however, ignores overall fuel consumption that takes place when you have to drive to the next county to buy a quart of milk.  If every urban area in California continued to build at four houses to the acre, the distances from homes to basic amenities would grow ever greater. And you can forget about your commute: unless companies are going to open up branch offices in Tracy and Palmdale, then commutes from Cox's fantasy fringe to established job centers would become farcical.  Big houses and the Frontier mentality are fine if you live and work in Jurupa. Sure, people like big houses.  They also like living close to their jobs. Some of them even like living close to other people.  Cox ignores the inherent attributes of places -- charm, vibrancy, attractiveness, convenience, accessibility (see London, Paris, Santa Monica, San Francisco... you get the point) -- that would make a resident perfectly happy to live in close quarters and assumes that residents base their preferences purely on housing types. In other words, don't hire Cox as your economist, and please don't hire him as your real estate agent.  But what about the inner suburbs? What about Milpitas? Or Covina? Or even Irvine? They can't keep expanding. So if, as Cox's whole premise suggests, population growth is a good thing, then how exactly are they going to grow without becoming more dense?  State and regional planners also seek to radically restructure urban areas, forcing … SB 375 doesn't force anything on anyone. It provides incentives and a few penalties. No city is going to go out of business if it doesn't comply.  Moreover, planners at MPO's have insisted that SCS's will cause anything but "radical" restructuring. Places that are suburban will remain largely suburban. Places that are urban will simply become "more" urban and thus relieve pressure on suruban areas. By promoting this high-density development, most new development will take place on a relatively small footprint, thus largely preserving Cox's precious status quo.   …much of the new hyperdensity development... "Hyperdensity"? Hyperdensity is Hong Kong. It's Mumbai. It's a Hunger Games screening on opening night. The notion that Cox thinks any place in California could ever be hyperdense is enough to forever disregard him. (Ironically, I don't actually want to disregard him. I like a good contrarian.) ...into narrowly confined corridors. This description implies that California's boulevards will turn into sun-starved canyons, with laundry hanging between tenements. That's hardly the case. But even if it was, Cox willfully ignores the premise behind directing density to "narrow" corridors: it keeps density out of single-family home neighborhoods. What a concept. If the planners have their way, 68% of new housing in Southern California by 2035 would be condos and apartment complexes. This contrasts with Census Bureau data showing that single-family, detached homes represented more than 80% of the increase in the region's housing stock between 2000 and 2010. On Day One of moral philosophy class, most professors review the naturalistic fallacy, otherwise known as the is-ought fallacy. It means that what "is" is not necessarily what "ought" to be. (For an example, see the American South, ca. 1600 – 1865.) Mr. Cox apparently was absent that day.  Over the past 40 years, median house prices have doubled relative to household incomes in the Golden State….economic studies…have documented the strong relationship between more intense land-use regulations and exorbitant house prices. I'm not going to tangle with Cox over studies. We all know that there's a study for everything. I'll only say that a lot more things were going on in the 1970s than just the introduction of land use regulations. There was also, say, Prop. 13, the oil crisis, the consumption of readily developable land, and disco too.  Since then, California has weathered the flight of the defense industry, the slow decrease in oil production, the scourge of the War on Drugs, the closure of military bases, the evisceration of the public school system, the near-lifetime incarceration of nonviolent felons, and the rise of the Kardashians (who, not coincidentally, live in Calabasas). I have no idea what this has to do with home prices, but my point is that California is a slightly more complicated place than Cox makes it out to be.  A 2007 report by McKinsey….recommended cost-effective strategies such as improved vehicle economy, improving the carbon efficiency of residential and commercial buildings, upgrading coal-fired electricity plants, and converting more electricity production to natural gas. The California Legislature recommended the same thing. It's called AB 32.  It is better to raise children with backyards than on condominium balconies. In a universe full of empty assertions based on nothing but aesthetic biases, rarely does logic flee from opinion with quite such haste as it does from this one.  In point of fact, only an illiterate boor would categorically privilege the suburbs over all else. Cox needs look only to Betty Friedan (or Betty Draper, for that matter) to consider that maybe life holds more than meatloafs, soap operas, and chain restaurants.  Plenty of young parents would be perfectly happy to live in nice, well located multifamily dwellings rather than in poorly constructed stucco boxes in the high desert. If only there were more such dwellings to go around. However, if Cox thinks that the outer suburbs are so darned attractive, then he can get bargains on just about as many homes in Riverside, Stockton, and Merced as he wants. Everyone else who can afford to buy is buying elsewhere, or so just about all the demographic analyses suggest. A less affordable California, with less attractive housing, could disadvantage the state as much as its already destructive policies toward business. Here, Cox conflates the form of housing with the supply of housing. Sustainable Communities Strategies explicitly account for projected population growth. Though Cox may not like them, all the odious little apartments in those regional plans are meant to house exactly the number of people by which each respective region is projected to grow. If Cox thinks all 10-plus million of those new residents should live in detached homes, then I'd like to see what sort of plans he has in mind.  Conclusion To Cox's credit, he never denigrates the mission of reducing emissions and greenhouse gases. At least he shares that goal with the fact-believing community. I wish, though, that he had more to offer. Surely SB 375 and its SCS's have their flaws. But if California is going to absorb millions of new residents, reduce pollution and greenhouse gas emissions, and be anything less than a snarled hellhole a generation from now, then it needs to do something. For now, SB 375 is that something, and spreading falsehoods and half-truths about it will not help. Cox would like to believe that war is coming. It's not. But summer is coming, and it's going to be a long, hot one if California—and the rest of the world—does not get its house in order.  This piece has been updated since its original publication April 11.

It was a little after 10 p.m. on a pleasantly warm Thursday evening in downtown Modesto when a member of the kitchen staff at the Firkin & Fox pub started gathering his belongings. "Hey, are you leaving?" a waitress asked the kitchen hand as he headed out the door. "We may need you. It's Thursday . Remember how we got slammed last Thursday night?" That's right, Thursday nights are jumping in downtown Modesto. So are Friday and Saturday nights, and some other evenings depending on local events. On this Thursday evening, metal bands attracted a colorful young crowd to the Fat Cat, just half a block from Firkin & Fox. Elsewhere, the sounds of hip-hop bands pulsed from multiple nightclubs. Comics entertained at St. Stan's brewpub. An upscale cigar shop and several white tablecloth restaurants drew a more refined crowd. The 18-screen Brenden movie theatre on 10th Street did brisk business. And all of this activity occurred on an evening when the largest entertainment facility in downtown was dark. The idea that downtown Modesto would be an entertainment and dining center would have induced laughter as recently as eight years ago. Now, the goal is to build on success with more commerce and — importantly — provide places for people to live downtown. There is still a long way to go. The housing market has crashed in Modesto as hard as anywhere in the country, making construction of housing units very uncertain. And while commerce clearly has bounced back in downtown, there remain empty storefronts in key locations, including right across the street from the $47 million Gallo Center for the Arts, which opened last year. "Redevelopment has three stages," said Linda Boston, Modesto Redevelopment Agency manager. "It has the pioneer stage, it has the teenage stage, and it has the adult stage — and, as you know, a lot of pioneers died." In other words, a number of downtown redevelopment efforts from the late 1980s and the 1990s failed. But downtown Modesto seems to have passed the adolescent stage and is now in the teenage years — full of life but rather unpredictable. It could grow up to be a success, or it could make some bad choices and fail. This feeling that things could still go either direction is one reason the redevelopment agency adopted a new redevelopment master plan in October 2007. The document is intended to be a guideline that was prepared in response to numerous inquiries from potential investors, Boston said. "We didn't realize how many folks were out there waiting in the wings. They want investment insurance, and that's really what this plan is," Boston explained. It was 1973 when Modesto native George Lucas made his town famous with the movie American Graffiti . The enormously popular flick captured the cruising scene in Modesto circa 1962. It was telling, however, that Lucas filmed most of the movie in Petaluma because he thought Modesto had changed too much since his youth. In fact, Modesto authorities had outlawed cruising, which locals actually called "dragging." Soon thereafter, Vintage Faire Mall opened several miles north of downtown. By the mid-1970s, downtown Modesto, which had thrived for decades, was a dead zone. The city created a redevelopment agency in 1983 with an original project area of three blocks, according to Boston. The project area grew to 2,000 acres, including all of the large downtown area, in 1991. The original project involved development of a hotel, the convention center and a parking lot along K Street. The project struggled mightily for years and everyone involved appeared to suffer financially. Still, Boston defends it as a "catalyst project," and the hotel, now operated by Doubletree, remains the tallest building in town. Next up was development of Tenth Street Place on the site of two abandoned hotels and other dilapidated structures. The project includes a joint City of Modesto-Stanislaus County government center, a parking structure, retail spaces and the Brenden theater. Downtown appeared to turn a corner when the project was completed in 1999. Prior to the opening of Tenth Street Place, Boston recalled, "women would never come down here, even in groups of four or five. We just didn't feel safe." Tenth Street Place was a crucial downtown redevelopmet project. The redevelopment agency has continued to invest. Among other things, it has provided a parking garage for an office building mostly leased by the county, put $500,000 into a façade improvement program, and funded the streetscape around the Gallo Center. Essentially, the agency completed every project in a 1994 redevelopment plan, Boston said. Chris Ricci, who owns the Fat Cat nightclub and produces an annual music festival that covers 15 blocks of downtown, said the city should be more directly involved in assisting businesses. In Las Vegas, where Ricci also does business, local government provides direct subsidies to businesses that generate revenue, he said. But that is not how Modesto operates, and local officials make no apologies. The 1994 plan called for making downtown a venue for the arts and entertainment, and officials love to cite this statistic: In 1999, there were a dozen places to eat downtown. Now, there are about 60. In addition, a collection of dive bars has been largely replaced with nightclubs and more upscale watering holes. The agency has not provided direct subsidies for these businesses, instead choosing to set the stage for private entrepreneurs such as Ricci. Last fall, the Gallo Center for the Arts opened. Funded by Stanislaus County and private donors, the facility has a 1,200-seat concert hall and a 444-seat second stage. Although the facility is clearly a cornerstone of downtown redevelopment, the City Council in 2000 actually decided not to fund construction. Instead, the city placed on the ballot a hotel tax increase to help fund for the project; the ballot measure failed, partly because councilmembers campaigned against it. So it is a county-owned arts facility with a $15 million private endowment, including $10 million from the Gallo family. The redevelopment plan approved last fall covers not just downtown, but the entire 2,000-acre project area. It focuses on economic development, changing land uses, improvements to the public realm, and transportation and circulation upgrades. Brent Sinclair, the city's community and economic development director, said the plan is intended to help guide potential housing development. The plan identifies opportunity sites, including some within walking distance of a multi-modal transportation center. In addition, the city may implement a mixed-use overlay zone or possibly a form-based code to further enable housing development, he said. New housing has not been built downtown in more than 30 years. The redevelopment agency has focused its low- and moderate-income housing set-aside monies on areas away from downtown, and private developers have not been willing to take the risk. That could change. The agency has proposed an affordable housing project at 17th and G streets on the northeast edge of downtown, and a market study estimated downtown could accommodate 500 to 750 market-rate units. Four local business entities calling themselves Team Modesto propose a seven-story, mixed-use building on a block of 10th Street owned by the Redevelopment Agency. The building would have ground floor retail with 75 condos above. The project, however, appears to have stalled. Another proposed project — a combination office and residential condo tower at 14th and J streets — is on hold, according to Modesto attorney Bart Barringer, whose law firm owns the property. The project simply is not feasible at a time when the median home price in Stanislaus County has dropped 45% in three years to $215,000. "These economic times are causing us an awful lot of consternation over just what to do and when to do it," said Barringer, a member of the Downtown Improvement District board who called residential development "the next logical step" for downtown. "If we would have started this eight years ago, we would have sold the units and we'd look like geniuses. If we had started them three years ago and have them come on line right now, we'd be in the poorhouse." While housing may be a ways off, public improvements go forward. One of the most important may be planned streetscape improvements along Ninth and Tenth streets to create a connection from downtown to a bluff-top park overlook and to Tuolumne River Regional Park itself. Development of the park is a $20 million project, the first phase of which is complete, according to Doug Critchfield, of the city's Department of Parks, Recreation and Neighborhoods. Contacts: Linda Boston, Modesto Redevelopment Agency, (209) 571-5179. Brent Sinclair, Modesto Community Economic Development Department, (209) 577-5228. Bart Barringer, Mayol & Barringer, (209) 544-9555. Redevelopment master plan: www.modestorda.com/documents/masterplan.asp

(The following is a harangue by an imaginary resident of San Ramon addressed to the author of this column, in response to an earlier article he had supposedly written about San Ramon City Center. The ambitious mixed-use project (office, retail, housing and hotel) is to start construction in early 2009 in this city of 50,000 people in the southwest corner of Contra Costa County. Residents of San Ramon, which incorporated in 1983, have long expressed the desire for a conventional downtown area. Of the 39 acres to be developed, 17 belong to the developer, while the city owns the remaining 22, most of which the city bought from the developer to provide some seed capital for the project. The San Ramon City Council approved the project unanimously in December 2007, less than two years after Sunset Development first proposed the mixed-use endeavor. Please note that the proposed development adjoins the developer's existing Bishop Ranch office park. We go now to the harangue.) "What on earth is the matter with you? Isn't anything good enough for you? Really, I think you've got issues. "I mean, here's a project that meets just about every requirement you have ever asked for in urban design, or pretty darn close. San Ramon City Center has a regular street grid, and the city has excused the project from its set-back requirements, so most of the buildings can line the sidewalk. We have a good mix of different uses, including housing, office space, a new city hall, retail and a hotel — all to be built by our native son firm of Sunset Development. In terms of sustainability, this project is so green, it's practically purple. "Yes, it's not terribly exciting, but aren't you the guy who said that urban planning was not meant to be entertainment, and that urban designers should not be afraid of being a little bit boring? Make up your mind! "True, this new City Center is ‘nothing more,' as you say in your condescending way, than ‘an extension of a suburban business park.' And what's the matter with that? You yourself always say that suburbs grow up to be cities. San Ramon is growing up. So what's your point, bobble-head? "I acknowledge that it's hard to reinvent a suburban office park into a downtown area. And it is true that it is challenging, very challenging, to make a walkable street out of the regional highway known as Bollinger Canyon Road. I think our architects, Cooper Robertson of New York, have done a very good job in making the wide roadway feel narrow by planting a median strip in the middle of the street. And it's true that the football-field-sized plaza at the main intersection will probably look pretty big. That's why the architects ‘activated' the space, which you charmingly refer to as an ‘urban dead zone,' with an outdoor café and one of those fountains that surprise you, because you don't know when the water is going to spray up! Really, kids love that sort of thing. Who gives a rat's behind what you find ‘convincing'? You're not the client! We are. "I grant that you have a point, that the wide street is really a suburban thoroughfare, designed for the convenience of motorists and office tenants, not for the comfort and convenience of people on foot. To paraphrase a former secretary of defense, you design cities with the streets you've got. We've got a wide street, smarty. I don't like your suggestion of putting diagonal parking on either side as a means of narrowing the street. We don't want to slow down traffic, do we? Oh, we do? Well, why don't you slow down traffic in your own community and see if that improves the quality of your life! "And while I'm at it, I didn't appreciate your crack that San Ramon City Center doesn't look very much different than an office park from the air. That's simply not true: An office park would have much more landscaping around all the buildings, while the office buildings here will just have a little sward of grass surrounding them. And I don't think it was appropriate for you to ‘infer' that the grassy setbacks around the office buildings means that the developer has not gotten away from its suburban mindset. I don't really care that office buildings in San Francisco don't have grass all around them. Too bad for them. I like grass. "But what really ticks me off is the way you lampoon the main commercial block, which we call ‘the plaza.' It is not a ‘warmed-over lifestyle center.' It is a shopping street. What's wrong with the street being ‘inward looking,' as you call it? I don't know about you, but I don't feel like buying shoes right next to the city's busiest, fastest street. It would be like listening to your iPod at the Daytona Speedway. ‘Vroom, vroom' while you're trying to do something else. I don't think so. "What burns me up the most is when you say the developers ‘neither understand nor are in fundamental sympathy' with urban goals. Or when you say that San Ramon City Center is really just ‘pretend urbanism,' or, as you say – and this is really unforgivable – ‘a kind of children's tea-party version of a major downtown area, designed so as not to upset suburban expectations.' We'll, let's see you do better! "What? I hurt you with that last comment? No, I didn't know you were a frustrated urban designer, and you were only writing to make ends meet until the ‘really big plan' comes along. Oh, your lower lip is trembling! Oh, don't make those puppy-dog eyes at me! You know I can't resist that. "Yes, yes, I'll take you to dinner. But you've got to promise to behave and not poke any more fun at San Ramon. We're a young town. You should be proud that we're making the effort. Now, no more talk of urbanism. We're going to Chipotle."

The California Air Resources Board's release of a draft scoping plan for reducing greenhouse gas emissions strikes me as important for several reasons. The plan provides a starting point for how California will dramatically reduce its output of gases that cause global climate change, and the plan downplays the role of land use planning in those reductions. Perhaps most important, however, the plan marks the State of California's return to the role of public policy leader. Other states and many cities are talking about ways to address climate change, but California's greenhouse gas emissions reduction law (AB 32) and the new scoping plan for implementing that law place the state at the forefront. As Air Resources Board Chair Mary Nichols said in a prepared statement, "California is once again blazing a trail to lead other states and the nation to address climate change." Two generations ago, California was a land of bold ideas and big actions. We invested heavily in huge public works projects on which we still rely. We built a three-tier system of higher education that made college accessible to every California resident. We adopted environmental protections that became models for the federal government and other states. This and more helped make California an economic powerhouse and a desirable place to live. For about the last 35 years, however, the "big picture" has eluded us. Instead, we have spent untold energy and money arguing about details and diversions. While other states and regions innovated, we devised the Educational Revenue Augmentation Fund and the "triple flip." We got passed by. In the land use arena, states such as Oregon, Washington, New Jersey and Maryland brushed California into the suburban dustbin. But there is a void in climate change policy because the Bush administration has abdicated. Passage of AB 32 in 2006 moved California into a leadership position. The law requires the state to reduce its emission of greenhouse gases to 1990 levels by 2020, and to 80% less than 1990 levels by 2050. Those are aggressive targets. The Air Resources Board is the agency charged with implementing the law, and the draft scoping plan released last week — during a board meeting that drew an audience of hundreds of people — outlines how the state will meet the emission goals. The scoping plan emphasizes cleaner-running vehicles, energy efficient buildings and appliances, renewable electricity sources, and minimizing industrial emissions. The plan calls for land use and local government activities to provide about 1% of reductions for the 2020 goal — something that concerns environmentalists and smart-growth advocates, and pleases development interests and many local governments. The plan is only a proposal, so it could change. Remember, though, what's important here is the big picture. The day after the air board released the scoping plan, Rajendra Pachauri, chairman of the Intergovernmental Panel on Climate Change (the UN body that shared last year's Nobel peace prize with Al Gore), said while speaking in Sacramento that the plan could set an example for the rest of the world. The Sacramento Bee agreed in a Sunday editorial , saying, "More than any other government in the world, California is creating a template for tackling global warming." Is the template the right one? No one knows. But at least the state is out on the leading edge of public policy once again. - Paul Shigley

Redevelopment agencies may soon have authority to assist homeowners with subprime loans who are facing foreclosure, and to acquire foreclosed housing. Under a measure likely to pass the Legislature, redevelopment agencies could aid homeowners, lenders and developers whether or not the subject property is within a redevelopment project area. However, a late amendment to the bill would prevent agencies from using their 20% housing set-aside fund for the activities. Assembly Bill 2594 by Assemblyman Gene Mullin (D-South San Francisco) would permit redevelopment agencies to enter the foreclosure and subprime mortgage mess. The measure passed the Assembly in May and survived the state Senate Transportation and Housing Committee in late June before heading to the Senate floor. But the only way that Mullin and the California Redevelopment Association (CRA), the bill's sponsor, could get the bill out of that committee was to a delete a provision allowing redevelopment agencies to spend their 20% housing set-aside funds for foreclosure-related activities. Instead, the bill permits redevelopment agencies to use only the "other" 80% of funds that are normally dedicated to infrastructure, economic development and activities that generate tax increment. "It's not a minor amendment," said John Shirey, executive director of the CRA. He predicted that preventing redevelopment agencies from using housing funds for foreclosure-related activities would "greatly reduce the likelihood" that local government will get involved directly. Still, the bill does authorize redevelopment agencies to make new loans, buy out subprime mortgages and acquire foreclosed units anywhere within the local jurisdiction. Approval in the state Senate appears likely, with a vote coming in August. The governor's position on AB 2594 is unknown. With the subprime mortgage mess reaching new heights, state lawmakers introduced a number of bills in January and February to address the issue through direct government intervention or regulation of the mortgage industry. With hundreds of thousands of California homeowners facing foreclosure, many people assumed at least some pieces of legislation would pass easily. But that has not happened. For example, a five-bill package that sought to tighten lending practices died in the Senate Banking, Finance and Insurance Committee, where members said federal regulators and the private market could take care of the situation. The Mullin bill was another one that appeared on the surface as if it would sail through the Legislature. Foreclosures have hit both Democratic and Republican districts. Plus the bill is permissive — it does not mandate that local government officials do anything. The measure passed the Assembly in May on a 49-23 vote, with all but one of the opposing votes cast by Republicans. The bill then went to the Senate, where it faced more Republican resistance — the caucus has recommended a "no" vote, saying that government intervention is not necessary — as well as opposition from affordable housing advocates, who argued against spending low/mod housing funds on foreclosures. The CRA's Shirey was among the people surprised at the level of opposition. "I have to admit to some frustration over this issue because we initiated this bill at the request of the Democratic leadership," Shirey said. "This crisis is not over by a long shot. I just don't sense any urgency to do something about the problem." For cities and counties, the problem is this: Foreclosed houses are accumulating and becoming blighting influences. Oftentimes, the houses sit vacant. They quickly deteriorate and attract "broken window" problems that can drag down a neighborhood — the sort of problems that redevelopment agencies are often charged with solving after the fact. A number of cities have increased their code enforcement efforts to force the property owner, usually a bank or investor, to maintain a house and its landscaping. But a better solution may be to have people living in the house. That's where the Mullin bill comes in. The measure includes a number of provisions: • The bill authorizes redevelopment agencies to use non-housing funds to provide pre-foreclosure assistance to homeowners by acquiring, assuming or refinancing mortgages or making new loans to homeowners. • Assistance would be limited to homeowners with subprime and non-traditional mortgages, terms which the bill defines. • Because only non-housing funds may be used, homeowners with incomes of up to 150% (rather than the low/mod limit of 120%) of median income are eligible for assistance. • No affordability covenants are required to be placed on assisted properties. • Agencies may help lenders or developers purchase for-sale vacant homes that have been foreclosed so that the units may be rented or sold. • Agencies may acquire and manage foreclosed units themselves. • Agencies may provide counseling to homeowners in financial difficulty. • The bill contains a January 1, 2013, sunset date. Mullin and the CRA argued that agencies should be able to use a portion of the 20% of revenues required by law to be spent on housing for low- and moderate-income families. "We are clearly in a mortgage crisis," Mullin told the Senate Transportation and Housing Committee. "This is a pro-active measure to attempt to head off blight." But Committee Chairman Alan Lowenthal (D-Long Beach) said he would oppose the bill unless provisions for use of low/mod housing funds were deleted. State law requires redevelopment agencies to devote 20% of revenues to increase and improve affordable housing because redevelopment activities often shrink the affordable housing stock, he said. The bill would not increase the housing stock, rather it tackles blight, Lowenthal said, adding, "Activities to address blight are appropriately addressed by the other 80%." Lowenthal echoed the concerns of affordable housing advocates, who lobbied hard against AB 2594 as originally written. "We are fully aware of the growing foreclosure problem and its effect on our communities, particularly where our clients live, but the Low and Moderate Income Housing Fund (LMIHF) is not the appropriate source to mitigate the problem," Christine Minnehan, a lobbyist for the Western Center on Law & Poverty, and Brian Augusta, an attorney with the California Rural Legal Assistance Foundation, wrote in a letter to lawmakers. "The LMIHF must be used to ‘increase and preserve' the community's supply of affordable housing." Minnehan said she could accept a bill that permitted agencies to use their non-housing funds on the foreclosure problem inside and outside of project areas. Steve Lantsberger, who manages the Hesperia Redevelopment Agency, said removing housing funds from the equation will reduce agencies' interest in helping resolve foreclosure issues. "You're talking housing. It only makes sense to use housing funds," Lantsberger said. "Most of our non-housing funds are committed to capital projects and making debt payments." Located in the San Bernardino County high desert, Hesperia experienced a housing construction boom from 2003 through 2006, when as many as 1,800 units a year were built. Now, there are "several hundred" units in some stage of foreclosure, and developers are walking away from half-built subdivisions and incomplete infrastructure projects, Lantsberger said. In addition, vacant foreclosed houses are being used for parties, drug activity and by squatters, he said. "It just invites problems that we are having to deal with as municipalities," he said. The extraordinary circumstances of the day justify the spending of redevelopment funds outside of designated project areas, Shirey said. "It's a good investment for redevelopment agencies to deal with those properties now, before those neighborhoods become candidates for redevelopment," Shirey said. Contacts: John Shirey, California Redevelopment Association, (916) 448-8760. Office of Assemblyman Gene Mullin, (916) 319-2019. Christine Minnehan, Western Center on Law & Poverty, (916) 442-0753. Steve Lantsberger, Hesperia Redevelopment Agency, (760) 947-1906.

The state auditor is questioning construction of a new death row at San Quentin State Prison, saying Department of Corrections' cost estimates for construction and operation are too low. Although State Auditor Elaine Howle did not recommend a different location for the project, many people expect her to do just that in an upcoming report. For years, government officials and civic leaders in Marin County have been urging the state to build the new death row elsewhere. People in Marin County would like to see the 156-year-old San Quentin closed eventually, and the site converted into a multi-modal transit hub and other uses (see CP&DR Public Development , April 2005 ). Last year, Gov. Schwarzenegger vetoed a bill that would have delayed construction until Corrections investigated alternative sites, something that Howle recommended in 2004. In June, Howle estimated the 768-cell project could cost $395 million to construct, up from Corrections' initial estimate of $220 million, and add $1.2 billion to staffing expenses during the first 20 years of operation. And, unless the state double-cells condemned inmates — a practice that is not recommended — the facility would be full by 2014. The State Water Resources Control Board has proposed an overhaul of how it and the regional water quality control boards carry out many basic regulatory functions. The detailed proposal contains 17 changes that state lawmakers would have to make, and nine administrative changes that the state and regional boards could implement on their own. Among the legislative changes recommended: • Ease conflict-of-interest rules so that more experienced candidates would be eligible to serve on regional boards. • Make regional board chairs full-time, paid positions. • Create a formal, public process by which the regional board chairs may coordinate efforts and reduce regional inconsistencies. • Streamline the process for adopting total maximum daily loads (TMDLs), a measure of how much of a certain pollutant a water body can tolerate. • Streamline enforcement procedures. • Allow regional board executive officers to make some decisions now requiring regional board action. Among the administrative changes recommended: • Standardize the National Pollutant Discharge Elimination System (NPDES) permit process so that it is consistent and permits are enforceable. • Improve data management systems and make water quality information available on-line. • Move forward with a new Bay Delta cross functional team of state and regional board staff members to develop and implement water rights and water quality actions. • Upgrade enforcement efforts and spill notification requirements. The state board plan appears to be a response to State Senate President Don Perata, whose bill to reduce regional board membership and change board member qualifications was vetoed last year. Perata has a similar bill this year (SB 1176), but it appears to be going nowhere. Criticism of regional boards by "the regulated community" has increased during recent years. Information on the "Water Quality Improvement Initiative" is available on the state board's website, www.waterboards.ca.gov . The developer of the proposed Las Lomas project on the edge of the Santa Clarita Valley has sued the City of Los Angeles for $100 million because the city stopped processing the development applications. In a suit filed in Los Angeles County Superior Court, developer Dan Palmer argues that the city halted the process for arbitrary and discriminatory reasons. The Los Angeles City Council in March voted 10-5 to stop processing the application for 5,500 housing units and 2 million square feet of office space on 555 acres at Interstate 5 and Highway 14. Councilmembers said the project would add too much traffic to the already congested interstate. The company that owns Newhall Land and Farming Company filed for Chapter 11 bankruptcy protection in June. Newhall officials insisted their company — which has developed much of the Santa Clarita Valley and is behind the proposed 21,000-unit Newhall Ranch project — was not going out of business. The parent company, LandSource Communities Development LLC, characterized the bankruptcy filing as only a means of restructuring debt.

An award of $665,000 in damages and legal expenses to a developer in Pacifica has been thrown out by the Ninth U.S. Circuit Court of Appeals. The unanimous three-judge panel determined that a questionable condition of project approval that the city eventually repealed did not constitute a violation of the developer's equal protection rights because the condition did not stop the project from moving forward. The Ninth Circuit determined that the City of Pacific owed developer North Pacifica LLC nothing. The case illustrates, Judge Mary Schroeder wrote bluntly, "the friction that can grow between a developer trying to secure approval of a condominium project as quickly as possible, and a city trying to use development permit procedures to avoid all foreseeable future problems." Pacifica is a city of about 40,000 people on the coast of San Mateo County where slow-growth politics predominate. For more than 25 years, Pacifica's growth wars have spilled into the courts and voting booths. Ten years ago, Pacifica was the setting for the important state appellate court ruling Milagra Ridge Partners Ltd. v. City of Pacifica , 62 Cal.App.4th 108 (1998) (see CP&DR Legal Digest , April 1998). In that case, the court ruled that voters' decision to overturn a general plan amendment permitting a housing subdivision did not amount to inverse condemnation because the developer had never submitted an application that conformed to the general plan. In May of this year, a different developer wanting to develop the "Quarry" property — where voters have blocked development multiple times — sued the city, alleging construction of a water treatment plant and realignment of Calera Creek damaged the property. The case at hand involved proposed development of a 4.3-acre parcel known as the "Bowl." In 1999, North Pacifica (NP) filed an application for a condominium project on the site. City officials made a number of requests for additional information before finally deeming the application complete in June 2001. Before the application made it to the Planning Commission, North Pacifica sued, alleging that city processing delays had violated the company's due process and equal protection rights. The Planning Commission approved the project, but a citizen appealed to the City Council. In August 2002, the City Council approved the project subject to 39 conditions of approval. North Pacifica objected to a number of the conditions, including condition 13 (b) requiring that condominium owners be individually and collectively liable for maintenance of building exteriors, landscaping, common areas and an access road. North Pacifica contended that no other condo developer in the state had ever been subject to condition 13 (b) and said it would render the project unsaleable. Apparently, however, North Pacifica's written objections never reached either the Planning Commission or City Council until after the project was approved. At the time, city attorneys and planners insisted on the condition as protection because North Pacifica had filed a different lawsuit in state court demanding that the city maintain the access road. (North Pacifica eventually lost that suit at the appellate court level in 2005.) A citizen appealed the City Council's approval of the entire project — 19 houses and 24 condominium units on the 5.8 acres as the "Fish" and "Bowl" sites — to the Coastal Commission. Those proceedings ground on for years before the Commission in May 2006 overturned the city's approval because of impacts to wetlands. The developer's suit against the Coastal Commission is pending in state court. Meanwhile back in federal court, U.S. Magistrate Judge Edward Chen ruled that North Pacifica could not pursue its due process claim because it had not sought compensation in state court. But in October 2003, Judge Chen concluded that imposition of condition 13 (b) did violate the developer's right to equal protection. After that ruling, the City Council repealed the condition. Still, North Pacifica sought damages, and in May 2005 Chen awarded $156,000 in damages, $454,000 in attorney's fees and $55,000 in costs. Chen concluded that the development was worth less from August 2002 until November 2003, the period during which condition 13 (b) was in effect. Both sides appealed to the Ninth Circuit. North Pacifica sought to resurrect its due process claim, while the city sought to overturn the award for violation of equal protection. The city won on both counts. The Ninth Circuit concluded that imposition of condition 13 (b) did not violate equal protection rights because there was no evidence the city singled out NP for discriminatory treatment. The court also noted that compensation was not justified unless the developer could prove actual damages. "The problem" wrote Judge Schroeder, "is that there was no reduction in value attributable to condition 13 (b) because development could not go forward until NP obtained a development permit from the Coastal Commission. The condition did not cause any actual delay. Even if we were to agree that NP should have prevailed on the equal protection claim, it would have been entitled only to nominal damages." On the due process claim, the Ninth Circuit upheld the district court's ruling but on different grounds. The district court said NP first had to press and lose a claim in state court before seeking relief in federal court. That would have been true had NP filed a taking claim, but the developer instead filed a due process claim based on the city's lengthy process, the Ninth Circuit pointed out. The Ninth Circuit found there was a "reasonable explanation" for every delay. The city needed additional information to review the application, it sought a new application when NP's agent dropped out of the process, and it restarted the environmental review process after determining that NP wrongly claimed the project was exempt, the court noted. The Case: North Pacifica LLC v. City of Pacifica , No. 05-16069, 08 C.D.O.S. 5685. Filed May 13, 2008. The Lawyers: For North Pacifica: Jaquelynn Pope, (310) 379-3410. For the city: Lee Rosenthal, Goldfarb & Lipman, (510) 836-6336.