In approving a redevelopment project that relies on a 20-year-old environmental impact report, the City of San Diego was not required to conduct supplemental environmental review on the issue of climate change, where the only discretionary action for a project was limited to project aesthetics, the Fourth District Court of Appeal has ruled. One of the threshold questions in any review under the California Environmental Quality Act is whether the project requires discretionary action or approval by the prevailing governmental entity. If not, then CEQA does not apply and no environmental review is required. In this case – involving Manchester Pacific Gateway's plan to develop 3 million square feet of office, hotel, retail and museum space on former Navy property along the downtown San Diego waterfront – the Fourth District addressed this threshold question in the context of supplemental environmental review of climate change impacts under Public Resources Code § 21166. The court held that because any discretion on the part of the City of San Diego was limited to aesthetics only, there was no discretionary action to trigger supplemental environmental review of climate change impacts. The genesis of this case goes back to a time before hardly anyone had even heard of climate change. In 1990, the city entered into a development agreement with the United States regarding a redevelopment project in downtown San Diego for which an EIR was subsequently certified. One of the requirements of the development agreement was that the developer submits its construction documents to the Centre City Development Corporation (CCDC), an arm of the city government charged with implementing downtown redevelopment projects. This case involved the CCDC's review of construction documents in 2006 and 2007 – created more than15 years after the development agreement was executed. The CCDC, and subsequently the City Council, determined that no supplemental environmental review was required, even though the original EIR makes no mention of climate change impacts. A group called the San Diego Navy Broadway Complex Coalition brought a lawsuit challenging the city's determination. After the trial court dismissed the coalition's petition on several grounds, the group appealed on one issue: whether a supplemental EIR was necessary to evaluate the project's impacts on climate change. Instead of focusing on the "new circumstances" test under Public Resources Code § 21166, the appellate court focused on the issue of whether the CCDC's review of the construction documents constituted discretionary action. A discretionary action would trigger the need for supplemental environmental review. The court assumed, and the parties acknowledged, that the CCDC's review required some amount of discretion, limited only to the subject of aesthetics. Relying on Friends of Westwood v. City of Los Angeles, (1987) 191 Cal.App.3d 259, and Leach v. City of San Diego, (1990) 220 Cal.App.3d 389, the court held that supplemental environmental review of climate change impacts was not required because the city and CCDC's discretion only extended to aesthetics. The court rejected the coalition's argument that aesthetics are part of CEQA's definition of the environment, and that it was of no consequence that the CCDC's consistency reviews centered on aesthetic issues. The court cited Friends of Westwood and Leach for the proposition that environmental review is not required when the governmental entity has no authority to shape the project in a way to mitigate for environmental damage. Without the authority to modify the project, environmental review is meaningless.  "The fact that the CCDC could arguably exercise discretionary authority to alter the aesthetics of the Project so as to make the Project consistent with the development agreement does not demonstrate that the CCDC had the authority to modify the Project in accordance with a proposed updated EIR so as to reduce the impact of the Project on global climate change," Justice Cynthia Aaron wrote for the court. This case seems to extend the reasoning in Friends of Westwood and Leach to the next level. Under the court's analysis, it appears that when it comes to supplemental environmental review, the threshold issue is whether the governmental entity retains any discretion in relation to those impacts that would be evaluated in a supplemental EIR. In this case, the coalition appealed only on the issue of climate change impacts. Perhaps, if the coalition's arguments had centered on aesthetics, the court's analysis of discretionary action would have differed.  The Case: San Diego Navy Broadway Complex Coalition v. City of San Diego, No. D055699, 2010 DJDAR 9096. Filed June 17, 2010. The Lawyers: For the coalition: Cory Briggs, (909) 949-7115. For the city: Heather Stroud, deputy city attorney, (619) 533-5872 For Manchester Pacific Gateway: Steven Strauss, Cooley, Godward, Kronish, (858) 550-6006.

A unanimous California Supreme Court has upheld a trial court's decision to reject a challenge to a Proposition 218 election for a storm drainage fee, thus reversing a decision by First District Court of Appeal.  The state high court ruled the Marin County Flood Control and Water Conservation District maintained the requisite level of voting secrecy in accordance with the 1996 "Right to Vote on Taxes Initiative," which requires voter approval for certain local fees. The ruling was the first for the government in a string of three Proposition 218 cases the court has decided in the past two years. In Silicon Valley Taxpayers Assn., Inc. Santa Clara County Open Space Authority, (2008) 44 Cal.4th 431 ( Legal Digest Vol. 23 No. 11 Nov 2008 ), the state Supreme Court threw out an open space assessment because it provided only general, rather than parcel-specific, benefits. Bonander v. Town of Tiburon, 46 Cal.4th 646 ( Legal Digest Vol. 22 No. 04 Apr 2007 ) did not directly implicate Proposition 218, but the decision appeared to make Proposition 218 challenges easier to pursue. The latest decision upholds procedures similar to those that other local government agencies employ when conducting Proposition 218 elections in which votes are weighted according to the assessment amounts for individual parcel owners.  In 2007, the Marin County Flood Control and Water Conservation District considered levying a storm drain assessment – averaging $125 per parcel – to fund flood control improvements in the Ross Valley. In compliance with Proposition 218 (Article XIII D of the California Constitution), the district board adopted protest provisions, conducted a public hearing, and directed mailing of notices to property owners.  At the conclusion of the hearing, the Board determined that there was not a majority protest, and called for a special election. The Board decided to conduct a mail-only election. The materials sent to the voters consisted of a single piece of cardstock, with instructions on one side and the ballot on the other. The ballot side displayed name and address of the voter, the amount of the annual fee, the statement of the question to be voted on, and designated spaces for the voter's printed name, signature and the date. The election procedures adopted by the board provided that upon receipt, ballots would be put in a lock box, with access permitted only by the clerk and deputy clerk. The instructions provided that the clerks would not disclose how particular voters voted except by court order.  With this procedure in place, the voters narrowly passed the measure, 3,208 to 3,143. Over 1,700 ballots were invalidated for lack of signatures.  Ford Greene, a property owner within the district, filed suit, and other interested parties intervened in the litigation. One of Greene's contentions was that the requirement that the voter sign the ballot violated Article II, Section 7 of the California Constitution providing for secret balloting. The trial court rejected the argument, but was reversed by the Court of Appeal. The Supreme Court took the case to resolve the potential conflict between the secret balloting provisions and the elements of Proposition 218 calling for voter-specific information as part of the voting process. To resolve the potential conflict, the Supreme Court reviewed the history of Proposition 218,  as well as follow-up legislation adopted in 1997 and 2000. Notably, the 2000 legislation addressed the secrecy question in part, but it did not require the full secrecy associated with general elections. Recognizing that Proposition 218 elections for assessments call for weighted voting based upon the liability to the voter, review of the specific ballot information particular to each voter was necessary. Although the appellate court ruled that the Marin district could have maintained a higher level of secrecy for the storm drainage fee election, the Supreme Court concluded that actions taken by the district were consistent with both Proposition 218 and the implementing legislation.  The full voter secrecy mandated by Article II, Section 7, do not apply to the facts involving a Proposition 218 election, the court concluded.  The Case: Greene v. Marin County Flood Control and Water Conservation District, No. S172199, 49 Cal.4th 277, 2010 DJDAR 8390. Filed June 7, 2010. The Lawyers: For Greene: Ford Greene, in pro per; (415) 258-0360.  For the district: Michael G. Colantuono, Colantuono & Levin, (530) 432-7359.

Now that the California Air Resources Board has released its draft targets for greenhouse gas emissions reduction under SB 375, it's time to do some math. What follows is nerdy and a little dense, but it's important – and planners need to be able to follow the bouncing ball on 375.  The bottom line is that the math doesn't yet add up – and that's because what AB 32 calls for and what California's regional planning agencies think is realistic don't line up with each other. In the so-called "Scoping Plan" ( CP&DR Blog Oct. 2008 ) – the master plan for reducing emissions under AB 32 – released at the end of 2008, ARB concluded that the state would have to reduce emissions by 100 million metric tons of CO2 equivalent between 2010 and 2020 – from about 520 million metric tons to 420 million, or about a 20 percent cut. That would bring the state down to the same level of GHG emissions as 1990, which is the target set in AB 32 for the year 2020. But ARB also concluded that, if no action were taken, GHG emissions would increase by 2020 to 590 million metric tons – meaning the state must cut 170 million metric tons from what otherwise would be emitted, given population and economic growth during that period. Thus, ARB concluded, to meet AB 32, the state would have to cut emissions by almost 30 percent from the "business as usual" scenario. In the Scoping Plan, ARB also set a goal for the implementation of SB 375's probable land use and transportation reforms. Recognizing that these will create mostly long-term benefits, ARB said SB 375 should deliver about 5 million metric tons of savings from the "business as usual scenario". That's only about 3 percent of the overall savings. And it's a lot less than the reductions required by other key moves in the transportation sector, including the low-carbon fuel standards (16 million metric tons) and the increased gas efficiency standards (28 million metric tons). To put it another way, ARB is expecting to get almost 15 metric tons of savings out of technological improvements for every 1 metric ton of savings that comes out of a different land use pattern. So, despite considerable carping on the part of local officials who are fearful that they can't meet the standard, that would seem to be a pretty modest goal – "aggressive but achievable," ( CP&DR Blog May 2010 ) as the SB 375 wonks keep saying. (Environmentalists wanted a target that would be double or triple that amount.) But will the targets released the other day hit the goal? Let's do more math. After an enormous amount of wrangling at the Regional Targets Advisory Committee – and endless input by the regional planning agencies – the ARB staff has proposed a per-capita target of 5-10  percent by 2020 for the "Big 4" regional planning agencies – Sacramento, the Bay Area, Southern California, and San Diego. That means that emissions attributable to land use changes should go down 5-10 percent per person – not 5-10 percent overall. The targets for the Central Valley regional planning agencies were even smaller – between 1-7 percent. Remember, under SB 375, emissions reductions pretty much equals reductions in vehicle miles traveled. So think about what this means: a 5-10 percent reduction in per-capita VMT over the next decade – in a state where per-capita VMT is already among the lowest in the nation. Hard enough on its own terms. But don't forget that California's population keeps growing. The Department of Finance Demographics Research Unit projects that our state's population will grow from 39 million today to 44 million by 2020 – an increase of about 13 percent. So, summing things up … SB 375 is supposed to cut emissions by 5 million metric tons. ARB is saying the per-capita target for the vast majority of the state should be 5-10 percent. But the population is going up 13 percent.  If you're wondering how the heck that works out to a net reduction in emissions, you're not alone. It doesn't. But it does reflect what the regional planning agencies in California think is realistic.  Here's how Steve Heminger, the widely respected head of the Metropolitan Transportation Commission in the Bay Area, summarized his agency's situation in a communication to ARB: "Given that our RTP financially constrained expenditures for maintenance and operations will likely continue in the 80 percent range, the region will likely not be able to depend on massive infrastructure improvements to support GHG emission reductions. We can expect some modest reductions as a result of strategic expansion through priced Express Lanes and select transit corridors, and operational improvements that squeeze more capacity out of our existing transportation system." Most of the other major regional planning agencies had similar conclusions based on a variety of model runs and scenarios. Indeed, the lower targets for the Central Valley communities – where a lot of the car-oriented growth is likely to occur – will put more pressure on the coastal metros (plus Sacramento and the Inland Empire) – to reduce emissions. And the current recession has actually made it more difficult to reduce GHG emissions, even though growth has slowed considerably. That may sound counterintuitive, but there's a difference between slower emissions growth and actually reversing the trend so that emissions go down. A recession will slow emissions growth, because recessions always slow VMT growth. But recessions also reduce the overall amount of change in the built environment. New TOD projects won't get built. New transit lines won't get built. And so there will be fewer changes that can give people alternatives to driving – or shorten trips. So the bottom line is this: There's no way California's getting anything like 5 million metric tons of savings out of these targets.  But does this mean we should give up? Probably not, for two reasons. First, it should be obvious to everyone that emissions reduction under AB 32 is a zero-sum game. Every metric ton that you can't get out of land use is a metric ton that has to come from somewhere else – most likely from somewhere else in the economy where powerful lobbyists ( Insight Vol. 22 No. 09 Sep 2007 ) are at work. And second, as Hasan Ikhrata of the Southern California Association of Governments often says, SB 375 isn't really a GHG reduction bill. It's a land use planning bill – a way to force us to think more aggressively and comprehensively about how to address longstanding problems in the way our built environment is organized.  Ikhrata often makes this statement kind of ruefully – fearing, I think, that this reality gives the pavement crowd an excuse to push back against the planners. But he's right. Reducing GHG emissions isn't the only reason we should alter our built environment. But GHG emissions are a pretty good proxy for all kind of things. Fewer emissions means less energy consumed, which means less energy produced in environmentally destructive ways and less money going to purchase energy. It means less need for new highways, which are – again – not only environmentally destructive but also awfully blasted expensive for a state that's bankrupt. And so forth. All this may be moot in November, if Proposition 23 passes and AB 32 is suspended ( CP&DR Vol. 25, No. 7, April 1, 2010 ) – and/or if Meg Whitman is elected governor and decides to suspend AB 32 all on her own, as she's threatening to do. In the meantime, however, California's planners should keep trying to make the numbers add up – and figure out the "co-benefits" of SB 375.

A bill that would permit a lawsuit challenging a housing element to be filed at almost any time advanced through a state Senate committee earlier this week and is headed to the Senate floor. Assembly Bill 602 passed the Senate Transportation and Housing Committee on a party-line vote of 6-3 vote, with Democrats in favor and Republicans opposed. The partisan vote may have surprised some people, but it should not have. The politics of AB 602 are linked to crusading lawyers, state-directed planning of high-density housing and climate change mandates. No Republican wants to be associated with those things. But it's also true that the emergence of AB 602 during the last two weeks has created some odd alliances. The California Association of Realtors, the Silicon Valley Leadership Group and the Sierra Club support the measure; the California Building Industry Association, the California Chamber of Commerce and local government organizations oppose it. The politics are not simple. Bill author Mike Feuer (D-Los Angeles) told the Senate committee the legislation would "return affordable housing law in California to what it was for the last 25 years." As I reported last week , Feuer and affordable housing advocates argue that an erroneous 2008 Court of Appeal decision changed the statute of limitations for lawsuits over a housing element from, essentially, anytime to 90 days after the element is adopted. Housing elements are intended to contain the land inventories and policies needed for a city or county to provide its fair share of new units for households of all income levels. The Department of Housing and Community Development reviews local housing elements, but there are few penalties for not having a housing element that HCD certifies as being in compliance. The open-ended statute of limitations is necessary because not until a developer proposes an actual project – which may occur months or years after housing element adoption – can people determine the precise impacts of housing element land inventories and policies, explained Julie Snyder, policy director for the organization Housing California.  Maybe more importantly, said Snyder, is the threat of litigation that affordable housing advocates use to get local government officials to the negotiating table. That's a far more common approach than actual litigation, she said. Snyder said fewer than 20 housing element lawsuits have been filed during the past 25 years. But League of California Cities lobbyist Bill Higgins complained to the Senate committee that the bill does not distinguish between jurisdictions with HCD-certified housing elements, and those without. Under AB 602, a city could have adopted a certified housing element seven years earlier and still get sued over the adequacy of the element by a developer demanding a greater density bonus or waiver of development standards. Building Industry Association lobbyist Allison Barnett pointed out that a housing element lawsuit may result in a moratorium on all housing construction, which does nothing to improve the housing stock and punishes innocent parties. Still, committee Chairman Alan Lowenthal (D-Long Beach) made clear his support for the bill. "I've always felt we needed effective judicial enforcement of the law," he said of the housing element statute. "Access (to the courts) must be restored." Negotiations among housing advocates, builders and local government representatives are ongoing, but I find it hard to believe everyone will reach agreement. The differences are too fundamental and, frankly, I think everyone has a fairly strong argument. Planners have a deep interest in this one because they are the ones who actually prepare and implement housing elements – and because of the SB 375 aspect. As you probably know, SB 375 is the 2008 legislation that requires metropolitan planning organizations to prepare sustainable communities strategies (SCSs) which include regional land use plans, with the intent of reducing regional greenhouse gas emissions. However, SB 375 does not require city and county general plans to comply with SCSs. Thus, the housing element is seen as an essential tool (a stick, really) to ensure local governments actually implement SCS policies. Here's how a Senate Transportation and Housing Committee analysis of AB 602 puts it: " ousing element law is currently the only tool to get cities and counties to increase affordable housing densities needed to achieve the SB 375 regional greenhouse gas emission reduction targets. Without an effective way to enforce housing element law, the only tool to effectively ensure implementation of SB 375 at the local level is lost." – Paul Shigley

Back in 2005, after Con Howe stepped down from his longtime role as Los Angeles's planning director, my phone kept ringing off the hook with calls from people trying to help new Mayor Antonio Villaraigosa find a new planning director. Some wanted to know who I thought would be good; others wanted to bounce candidates off of me to see what I thought. After about the eighth call, I realized something important. There was only one person on everybody's list. Astonishing, given the typical biography of a big-city planning director at the time, she was 62-year-old woman from San Diego who hadn't even been a professional planner until the late 1980s. And so it was almost preordained that Villaraigosa was going to pick Gail Goldberg as his planning director. Gail was one of Villaraigosa's early, big hires – at a time when he was selecting many formidable women for top jobs, including Cecilia Estolano at the Community Redevelopment Agency, Gloria Jeff at the Department of Transportation, and Mercedes Marquez at the Housing Department. And now she is the last one of these women to depart , following Estolano by only a few months. There's a lot of loose talk around town today as to why Goldberg is leaving. Is she worn out? Did she tire of the endless budget-cutting, which has eviscerated her department more than anyone could have predicted only a couple of years ago? Did she clash with Deputy Mayor Austin Beutner, who was charged with reorganizing her department? Soon enough we'll know the truth. But for the moment, let's acknowledge Gail Goldberg for the extraordinary person that she is – and for the remarkable work she did in both San Diego and Los Angeles. And let's also recognize that even for a planning director as skilled as Gail, it's tough out there. I don't think anybody could have done a better job running the planning departments in both these cities. And I don't think anybody is more frustrated than Gail with how it has all turned out – San Diego unable to truly realize the "City of Villages" vision because of a lack of infrastructure money, and Los Angeles unable to realize the potential of a revived planning effort because of a budget meltdown that cost Gail her best senior people, who retired, and her most promising junior planners, who got laid off. By now everybody in planning knows the inspiring story of Gail Goldberg – a stay-at-home mom who found herself a widow at 40 who went back to school, and then wound up as a brand-new assistant planner in the San Diego planning department at age 46. Remarkably, she became the city's planning director only 13 years later – and the planning director in Los Angeles a few years after that. In San Diego, Gail was the primary architect of the "City of Villages" concept – perhaps the quintessential node-oriented California planning concept, which called for new growth to be focused on existing neighborhoods in a village-like way. City of Villages emerged from an innovative public outreach process for which Gail became well-known, through which the city went to extraordinary lengths not just to get people out to meetings (like giving away television sets) but also to explain the true nature of the choices facing the City and its neighborhoods. Implementing City of Villages has proven to be an overwhelming task , as the city struggles both to update all of its community plans during dark budget times, but still hasn't solved an apparently endless multibillion-dollar infrastructure deficit, without which the City of Villages plan probably can't win the widespread political support required for implementation. Los Angeles proved an even tougher nut to crack. L.A. was already far down the infill road when Gail arrived; half of the city's new housing units were already being built on commercial strips, and new transit stops were popping up all over town. From current planning to GIS to advance planning, she had to pull the department out of the dark ages. Community plans – the bread-and-butter of advance planning – were old and vague and provided almost no guidance. She quickly turned things around, getting more money from Villaraigosa when nobody but public safety could do so, putting community plan updates on a rigorous schedule – and, perhaps most important, turning the department into a place where talented young planners actually aspired to work. Through it all, Gail has always had a kind of homespun, motherly quality that endeared her to everybody. She often likened planning a city to planning a dinner party. "You have to make sure that everybody brings something different, and not everybody brings the same appetizer." When she moved to L.A., she spent every Saturday touring a neighborhood with one of her enthusiastic young planners, almost as if she was attending their dance recitals. And yet Gail was always tough enough to survive the rough-and-tumble politics of big cities, and in retrospect it's clear that she was on the leading edge of a whole generation of outstanding big-city planning directors who are women. Socialite Amanda Burden in New York and funny-but-gritty Harriet Tregoning in Washington, D.C., have far different styles – but their mayors would have been less likely to appoint them if it hadn't been for Gail. Thank you, Gail Goldberg, for making two of California's great cities better. And even though implementing your dreams is tough now, in the long run all your hard work will pay off.

Read Bill Fulton's appreciation of Gail Goldberg's time in Los Angeles here . After four-and-a-half years at the helm of the Los Angeles Department of City Planning, Gail Goldberg has announced her retirement. In a letter to Mayor Antonio Villaraigosa Goldberg, who arrived in Los Angeles after serving as planning director for the City of San Diego, cited major initiatives that she had championed at the department but wrote that ultimately she has "been long ready for retirement and new adventures."  The announcement comes just a month after the initiation of a major restructuring in the department. Under the restructuring, projects would be handled by a single staff member, and the department's case processing would be broken into four geographic units intended to enable staffers to focus on their respective communities. The restructuring process is planned to take place in three phases, through January 2011.  The first woman to head the department -- and one of several early Villaraigosa hires who collectively obliterated the city's glass ceiling -- Goldberg succeeded longtime director Con Howe and promised to bring major reforms and fresh ways of thinking to a department that had been criticized as ossified and overly bureaucratic; a November 2005 audit by then-City Controller Laura Chick found "an agency cast in a time warp of past practices, old procedures and outdated technology" that was "mired in backlogs, often in violation of state law." By contrast, Goldberg had enjoyed widespread acclaim in San Diego, where she promoted community-oriented planning under the mantle "A City of Villages." She was also known for embracing public participation and even using gimmicks like raffles to attract stakeholders.  In her resignation letter, Goldberg wrote that she was most proud of initiatives to "Do Real Planning" -- as opposed to merely process cases -- even while by the end of her tenure the department was forced to cope with the equivalent of a 45 percent reduction in staff due to budget cuts. Goldberg oversaw the addition of the Office of Historic Resources and the Urban Design studio, in addition to many specific plans and special initiatives.   Goldberg's efforts to streamline the department met with mixed results. Downsizing forced the department to adopt more efficient structures, but in the process the department lost such veteran planners as Jane Blumenfeld, who had guided the evolution of the city's zoning code. Moreover, the department under Goldberg was the subject of yet another scathing audit by current City Controller Wendy Greuel. Gruele's audit, from April, found that the department had implemented few of the recommendations made in Chick's 2005 audit and that the department's "cradle-to-grave" approach to permit processing -- by which the process was to be vertically integrated and overseen by a single staff member -- had consistently fallen short of its goals, thus prompting the new round of restructuring. That audit, which Greuel called "most disappointing," also faulted the department for failing to fully implement the so-called "12-to-2" plan, by which the permitting responsibilities of 12 departments would be folded into those of two -- to be led by City Planning.  Nevertheless, Goldberg has of late had to operate in a vastly different city than the one she joined in 2006. When she was hired, Los Angeles was at the height of its building boom, and plans for smart growth development and new ways of thinking -- championed by both her and Mayor Villaraigosa -- were taking hold in the city. The slowdown in construction and the subsequent loss of both revenues and general plan funds took their toll on the department. Nevertheless, Goldberg leaves a legacy of new programs and strategies, including greater attention to public engagement, pedestrian-oriented planning, bicycle planning, historic preservation, and restructuring of the department's finances.  Goldberg will officially step down at the end of August, but her last day in the office will be July 16.

It's a saga straight out of the Rust Belt: auto giant closes its factory, laying off nearly 5,000 auto workers, and leaving behind an aging structure and contaminated site of 370 acres. Businesses throughout the region, which supply parts to the factory, also take a hit. But this is California, and in the second act, the plot takes an unexpected turn: along comes a company that, for $42 million, takes over the factory and 200 acres of land and promises to build electric cars there. The auto giant, which has faced bad publicity for closing the plant, decides to invest $50 million in the green tech manufacturer. Auto giant raises hopes of locals that it will even return to site for a joint venture someday.  Factory jobs are now expected to number in the hundreds instead of thousands, but parts suppliers expect a renaissance as well.   If a new Industrial Revolution � characterized by green technologies and not infernal smokestacks � is to take place in the United States, then the City of Fremont may be poised to be the Detroit of the 21st century.  Fremont, in south Alameda County, has been through highs and lows in recent months as Toyota closed its New United Motor Manufacturing, Inc. (NUMMI) plant in April, then resurrected it in May by announcing plans to sell the property to Tesla Motors, the well-known startup that has advertised grand plans to bring high-end electric cars into the mainstream. For years, Toyota had operated the NUMMI plant jointly with General Motors, but GM pulled out of the partnership when it declared bankruptcy in 2009, thus leading to the demise of the last major automobile manufacturing plant in the western United States.  How major Tesla will become � and how deep its impact on Fremont will be � remains to be seen.  Based across the San Francisco Bay in Palo Alto, Tesla is expected to go public with an initial public offering June 29, which should provide $178 million for its expansion. The company has said it hopes to begin manufacturing its roadsters and luxury sedans by 2012. Car prices will start at $50,000.   The company has said that, initially, it will not need all the manufacturing space that it has paid for at the NUMMI plant. But the Tesla announcement has already helped Fremont, a city of 210,000, cement its reputation�and that of all of adjacent Silicon Valley�as a center of green tech. The city has about a dozen green tech companies, including Solyndra, a solar panel maker that is building a manufacturing facility less than a mile from the NUMMI plant. Solyndra has 500 employees; another company, Solaria has 50 employees in Fremont.  Many of the companies are benefiting from money invested in green and alternative technology by the Obama administration. Tesla's plant is intended to be only one piece of this larger revitalized industrial base. City officials began laying the groundwork for the future of the NUMMI area before the plant closed in April. They secured a federal grant for $333,000 for four studies of the future of the site, and surrounding land that totals 850 acres. The studies are set to begin soon, and should be completed in eight months, said Fremont Economic Development Director Lori Taylor.   The area surrounding NUMMI is currently an amalgam of low-slung research parks, industrial buildings, and a few hotels, interspersed with acres of vacant land.  Several transit options already work in the area's favor: there is easy access to the Port of Oakland, two freeways run through the area, and a Bay Area Rapid Transit extension is under construction. The Warm Springs BART Station is slated to open in 2015. "This site is a prime location and adjacent to several acres of vacant and underutilized land, and right adjacent to a future BART station," said City Councilwoman Anu Natarajan. "There could be several uses including green tech businesses, higher density mixed use, potentially a convention center in the future." The city is also exploring whether to make an 850-acre area, which includes the NUMMI plan, a redevelopment project area, said Natarajan and city councilmember Bob Wieckowski.  Wieckowski said that Tesla's arrival means that the plant may become the hub of green industry located on adjacent land. NUMMI's suppliers were scattered throughout Northern California, but the adjacent land would be a good spot for the new businesses that will likely arise to supply Tesla � thus vertically integrating the green economy in Fremont. "Part of the trick to having a green economy and green jobs is to have them right next to each other," he said.   Tesla officials toured the NUMMI plant in the months before the plant was shut down, as had many other companies, Wieckowski said. But Tesla appeared to be headed towards Downey, a city in southeastern Los Angeles County, which had put together a package of incentives to lure the company to a portion of a former aerospace facility.  "We never had a clue," Downey City Councilman Mario Guerra said of Tesla's decision. "We had been working with them for over a year."  Guerra thinks the money Toyota is giving to Tesla Motors swayed the company to back out of its plans for Downey. Wieckowski said Fremont is also much closer to the firm's Palo Alto headquarters, and that proximity must have played a role.  If Tesla thrives in Fremont, it will be a major victory for a city that has suffered its share of loses. In 2006, the Oakland A's announced they were going to build a 32,000-seat baseball stadium in Fremont, on vacant land near the 880 Freeway. The stadium project was to be financed in part by housing and retail development on 260 acres.  But after local residents complained about the impacts, and the housing market tanked, the team began looking at sites in downtown San Jose and in Oakland. Team owner Lew Wolff has been quoted in the Oakland Tribune as saying he is no longer interested in a ballpark in Fremont, because a housing component is no longer a viable option for financing it.  Councilmembers Natarajan and Wieckowski say there is land near the former NUMMI site for a ballpark, if a team is interested. "Is it likely it will happen?" said Natarajan. "Maybe not with the A's." Fremont's Taylor said a committee from Major League Baseball "has been studying this site since NUMMI has announced its closure." The MLB task force is also considering other Bay Area sites.   Though it's considered the first mover in the electric car field, Tesla's success is not a sure thing, notes economist Robert Fountain, consultant and retired economics professor at Sacramento State University.  "There is lots of new technology not yet proven in production," he said, "and there are other competing efforts at an all-electric vehicle which may blow Tesla away. So there is lots of risk and at best several more years of local losses before Tesla has the economic impact in the region which NUMMI had, if it ever does."  Meanwhile, Downey may yet prove to be Fremont's competition in electric car production. Guerra said his city is currently talking to another electric car company about opening a factory on the site that Tesla once seemed certain to claim.  Contacts: Lori Taylor, Economic Development Director, City of Fremont,(510) 284-4024 Anu Natarajan, City Councilmember, Fremont (510) 284-4082 Bob Wieckowski, City Councilmember, Fremont  (510)790-2732 Robert Fountain, Regional Economics Consultant, Benicia (916)719-2037 Mario Guerra, City Councilmember, Downey (562)904-7274

To this day, the State of Kentucky forbids the sale of alcohol on election days. This momentary dry spell – which hearkens back to frontier times – is meant to encourage sober voting and discourage bribery via alcohol, turns a legal substance into something illegal for the public good. On Election Day in California this November, quite the opposite might happen. As of June 24, the Regulate, Control, and Tax Cannabis Act of 2010 (full text pdf) had collected more than the 435,000 signatures needed to put it on the ballot. If passed, it would strip away the medicinal veneer of cannabis use and simply make it legal for anyone over age 21 to possess, grow, and use cannabis, hemp, and related products. It would also authorize the state and local jurisdictions to impose taxes on its sale and cultivation and – importantly for planners – to decide where it can be sold and consumed.; (Update: The Tax Cannabis 2010 initiative has been named Proposition 19 on the Nov. 2 ballot.) An April 2009 Field poll of registered voters found 56 percent in favor of marijuana legalization and taxation. A SurveyUSA poll from the past April came up with the exact same number in favor of legalization, with only 42 percent opposed. If these sentiments hold firm, a vote that will be a fantasy for marijuana connoisseurs may turn out to be a very bad trip for city planners and local public officials.; "If it passes, and the polling right now says it has a real good chance, we will go through a period of a couple years where some folks put their heads in the sand, others jump out in front, and after two years at lot of people will say, ‘shoot, we have to get our arms around this because it's gotten kind of crazy,'" said University of San Francisco Professor of Politics Patrick Murphy, who specializes in drug policy. Voter-approved legalization would likely force cities' hands in two ways: first, it will give public officials the simple choice of whether to allow sale and/or cultivation in their jurisdictions, and, second, if it is allowed, then they will have to decide where it will go. Some embarrassing experiences with medical marijuana suggest that cities should think carefully about the land use ordinances that they will use if marijuana goes fully mainstream. "Planning gets caught somewhere in the middle" of the current confusion over medical marijuana, said Dale Clare, spokesperson for the Tax Cannabis 2010 campaign. "You're trying to zone for over-the-counter retail sales…while claiming that all of that is basically illegal activities." That bind became clear as the medical marijuana took off in 2009 and the City of Los Angeles became the poster child for cluelessness. A tardy, sloppily-written ordinance led to the proliferation of pot shops of varying degrees of respectability. Some felt like elegant day spas while others were no so luxe. The rap on the city was that it had more medical marijuana outlets than it did Starbucks. Los Angeles has since cracked down on what it considered rogue pot shops and instituted a complex and restrictive land use ordinance that, planners say, ensures access to those who need marijuana as medicine but otherwise prevents the blight and unseemly connotations that come with the trade of a formerly illicit substance. "The recommendations we came up with ensured that there would be potentially medical marijuana collectives located within all the community plan areas in the city," said Alan Bell, senior planner at the Los Angeles Department of City Planning, who led the crafting of the marijuana ordinance. "We'd limit the number so that we could have a limited number that we could enforce and monitor." By November, though, the marijuana trade may not be a matter of "need" but rather of "want" – want not only on the part of recreational uses, but also on the part of cities that perceive a monumental opportunity to generate revenue. The Regulate, Control and Tax Cannabis Act of 2010, despite its title, does not prescribe how cannabis should be regulated, controlled, and taxed. Nor does it dictate where pot can be sold or grown. It leaves those complex decisions up to cities and counties, which many consider both a blessing and a curse. "In Prop 215 we used a process to make a policy without regard for how it would be implemented. That's a lousy way to make policy," said Murphy. "We've got a similar situation on the horizon now where we will be making another very broad, very vague policy and say, ‘locals, figure it out.'" A report authored by Dale Gieringer, California Director of the National Organization for Reform of Marijuana Laws (NORML), in October 2009 proposes that a legal cannabis market could generate between $2.7 and $4.5 billion in state excise tax revenue, several hundred million in local sales tax revenue, and $12 - $18 billion in spinoff economic activity, including that from tourism and coffee shops. The California Board of Equalization estimates that cannabis could yield roughly $1 billion per year in direct tax revenues for the state, irrespective of how much local tax revenue they generate. Thus far, the City of Oakland has heartily embraced commercial medical marijuana through Measure F, a 2009 ballot initiative that passed with 80 percent of the vote and authorized the city to raise the tax on "cannabis business" from its standard 1.2 percent citywide sales tax to 1.8 percent. Oakland city officials are not shy about their embrace of marijuana's economic powers, and an entire neighborhood has been renamed with the convenient portmanteau of Oaksterdam. The name comes originally from Oaksterdam University, a school gives seminars to hobbyists and pot entrepreneurs about how to cultivate, process, and market the herb. The name has caught on throughout a half-dozen block area between downtown Oakland and Lake Merritt. What has also caught on is a minor economic boom. " were essentially moving into a place where there was a lot of vacant space," said Oakland City Councilmember Rebecca Kaplan, who authored Measure F. "They did a fair bit to clean up the area. There were dispensary owners out in the morning sweeping the sidewalks." Ada Chan, Kaplan's policy analyst for economic development, said that nearby hotels have been, at times, sold out and full of Oaksterdam students. "Why go to Amsterdam when you can go to Oaksterdam? We can keep our dollars here," said Clare. "While we're bringing in students to come to Oaksterdam, we're also improving the city and putting more money in the coffers because of all the folks who are coming to stay." (Richard Lee, the proprietor of Oaksterdam University, is one of the main sponsors of the Tax Cannabis 2010 initiative.) At a time when many cities' coffers are cached out and when the state, itself $21 billion in the red this year, has announced plans to divert over $2 billion from local redevelopment funds to school funds, marijuana may prove as effective a redevelopment tool as any.; Moreover, a retail scheme coordinated with local production could create a tightly closed economic loop that keeps money circulating within the city, thus creating multipliers that are absent from the sale and production of many other consumer goods.; ;"I do see using it as a further economic development tool. Part of what's in the pipeline for Oakland is to be looking at production and cultivation," said Kaplan. "There isn't yet still effective permitting and regulation for that. ;I think that could contribute significantly to jobs and economic development in Oakland." The prosperity of the Oaksterdam neighborhood offers a glimpse of one end of the spectrum of legalization: entire neighborhoods dedicated to marijuana, replete with places to get high, spend the night, satisfy the munchies, and commune with fellow travelers. While current medical marijuana regulations forbid on-site consumption, the November ballot measure explicitly permits on-site consumption if cities choose to allow and zone for them. The potential to stoke a neighborhood by allowing "coffee shops" in fact could achieve many of the popular smart growth goals, including pedestrian activity and neighborhood-focused economies not unlike those that surround nightclub-oriented neighborhoods such as Hollywood. "Places that are appropriate for street cafes are appropriate for coffee shops in general," said Gieringer, of NORML. "Like-minded people tend…to come together and share their joys and experiences together, so this would be similar to that," said Clare. "Maybe it's just a block, maybe it's a neighborhood…or maybe just a couple of businesses side by side that become a destination." The types of outlets that appeal to tourists will not necessarily be the same as those that simply sell medicine to patients. Understanding the difference, and knowing how to capitalize on them, will be one of many matters that planners will have to take up. "The question is what kind of outlet? Would you have cafes, walk-in clubs where people could smoke marijuana, or would it all be in package stores or something like that?" said Gieringer. "Of course there are siting issues and zoning issues all up the kazoo." In small towns and rural areas, the race may be on to see who can perfect a version of pot tourism based on the wine country model, where small towns provide an idyllic backdrop for marijuana use. "There are different levels of opportunities for different areas," said Clare. "You may find….more of a B&B where people come out to experience varietals and classic strains that are hard to come by and more expensive in the higher end." The early favorite in that race to provide the perfect marijuana getaway would be the towns of the so-called Emerald Triangle counties of the north coast -- Mendocino, Humboldt, and Trinity -- where cannabis has long been a way of life. Legalized marijuana may offer those towns a way to get a handle on an industry that is thriving but unregulated. "If I had to make a wild guess, just because of the lengthy association we've had with it up here there's going to be value to the Humboldt name," said Humboldt County Supervisor Mark Lovelace. "I think that the land use issues are going to be our biggest issues," said Eureka City Councilmember Linda Atkins, who authored a marijuana ordinance that is now under discussion in the picturesque coastal city. These prospects, whether rural or urban, put planners in the unusual situation of devising land use schemes to maximize public benefits and revenue for something that used to be confined to back alleys and unsavory streetcorners. For those who are skittish about that prospect -- or just uncertain about how to plan for pot – they have ample reason to get up to speed. "Some of those progressive localities were among the first to both regulate medical marijuana and create model ordinances that controlled the distribution of medical marijuana," said Stephen Gutwillig, California state director of the Drug Policy Alliance. "Cities like Los Angeles sat on their hands while dispensaries proliferated." As unsettling as the prospect of drug legalization might be for some public officials, the worst-case scenario for many cities would be not to plan and then to end up in a city that is neither wet nor dry but, indeed, hazy. "Don't pretend like it's going to go away," said USF's Murphy. "You're going to have to take elected officials, hold them by both shoulders, and explain to them the consequences of not acting." Contacts: Alan Bell, Los Angeles Department of City Planning, (213) 978-1322 Dale Clare, Control and Tax Cannabis California 2010, (415) 981-9940 Dale Gieringer, Director, California Office of the National Organization for the Reform of Marijuana Laws Stephen Gutwillig, California State Director, Drug Policy Alliance, (213) 382-6400 Rebecca Kaplan, City Councilmember, City of Oakland, ;(510) 238-7008 Mark Lovelace, Supervisor, Humboldt County, (707) 476-2396 Patrick Murphy, University of San Francisco Department of Politics, (415) 422-5867

The California Air Resources Board has released very cursory greenhouse gas emissions reductions targets for the state's 18 metropolitan planning organizations. Although draft greenhouse gas (GHG) reductions targets under SB 375 are due June 30, detailed targets will not be proposed until August. The targets, scheduled for final adoption in September, are intended to guide sustainable communities strategies that the MPOs must adopt during coming years.  The air board staff lumped the 18 MPOs into three groups: the four big urban MPOs (Southern California Association of Government, San Diego Association of Governments, Metropolitan Transportation Commission and Sacramento Area Council of Governments), the eight MPOs that each cover one county in the San Joaquin Valley, and the remaining six. Under the plan outlined at the June 24 Air Resources Board meeting, the big four MPOs must reduce greenhouse gas emissions from automobiles and light trucks by 5% to 10% per capita by 2020.  Every other target at this point amounts to a "placeholder" until further study and public outreach is completed. The placeholders are based largely on what MPOs say they will be able to achieve. So, for example, the placeholder reduction targets for 2020 and 2035 for the San Joaquin Valley MPOs are 1% to 7%.  The targets are intended to account for GHG reductions solely from land use planning and transportation system improvements, and do not account for GHG reductions from low-carbon fuels, according to Lezlie Kimura, of the air board staff. Seven public workshops on SB 375 target-setting is scheduled for July at seven different locations.

Judged by the result, the Supreme Court's June 17 decision in  Stop the Beach Renourishment v. Florida Department of Environmental Protection  looks like a model of judicial restraint. The court unanimously rejected a claim by landowners on Florida's northern Gulf Coast that they had suffered an unconstitutional taking of property after beach restoration by local governments turned their oceanfront homes into ocean-view lots separated from the water by 75 feet of new sand. Looked at more closely, however, the court's decision discloses an activist impulse by the Roberts Court's committed conservatives. In a plurality opinion, four justices fell one vote short of a majority to give federal courts new power to superintend state court rulings on land use law. The ruling they sought could have led to a vast increase in property rights litigation, giving property owners new leverage to block government-backed development and improvements aimed at benefiting the broad public. The decision came as liberal groups are stepping up their accusations that under Chief Justice John G. Roberts Jr., the court has been guilty of pro-business judicial activism. "The Roberts Court consistently pursues a political agenda that favors powerful corporate interests," according to a report by the Alliance for Justice, "and recent Supreme Court decisions show certain Justices' striking willingness to engage in judicial activism to fulfill their ideological goals." Exhibit No. 1 in the group's indictment is the 5-4 Citizens United decision in January, which freed corporations (and unions) to spend unlimited sums from their own treasuries on political campaigns. But the report pointed to a dozen other cases in which the court purportedly "overreached" by deciding questions unnecessarily, crafting new legal standards "out of thin air," or overriding factual determinations by lower courts. As another example, the group cited the 2009 decision, Gross v. FBL Services , that went beyond the narrow question presented to shift the burden of proof from employers to plaintiffs in one type of federal age- discrimination case. As the report notes, the logic of the decision could also apply to the broad range of job- discrimination suits (race, sex, and so forth) brought under the Civil Rights Act of 1964. The conservative Heritage Foundation rushed out with a report depicting the liberals' accusation as "mythology." The attack, senior fellows Robert Alt and Hans von Spakovsky argue in a legal memorandum , is an effort to distract court watchers from the true record of judicial activism by liberal judges. The court's handling of the Florida property rights case gives the warring ideological groups one more decision to debate. The case stemmed from the plan by the Gulf Coast town of Destin and its county government in 2003 to restore about seven miles of hurricane-eroded beach. Some beachfront property owners objected. Why? Because under well-established law, the restored beach would be public land, not private property. Having paid a pretty penny for an oceanfront lot with no beachgoing public between them and the water, the owners concluded that the government was taking their property without compensation in violation of the Fifth Amendment's Takings Clause. They also claimed the benefit of Florida's 1961 Beach and Shore Preservation Act, which generally provides that beachfront owners, post-restoration, are still entitled to almost all of their pre-existing property rights. The Florida Supreme Court rejected the owners' claim, saying the owners had lost no protected property right. The owners took the case to the U.S. Supreme Court. There, they argued the novel theory that the state court's decision on this somewhat close legal question amounted to a taking because it purportedly changed existing state law. The Supreme Court agreed to review the decision. During arguments in December, justices across the ideological spectrum appeared satisfied that the Florida Supreme Court had a sound basis for its decision. And that is what they said in the eventual  ruling . All eight justices (Justice John Paul Stevens, a Florida land owner, recused himself) agreed that the state court was not guilty of taking the owners' property. Before reaching that conclusion, however, Justice Antonin Scalia led a four-justice bloc that also included Roberts, Clarence Thomas, and Samuel A. Alito Jr. in saying that, yes, a court ruling changing an "established" property right could amount to a taking just as much as action by a legislative or executive body. The four other justices — Anthony M. Kennedy and Sonia Sotomayor in one opinion, Stephen G. Breyer and Ruth Bader Ginsburg in another — said it was unnecessary to decide the issue. In his opinion, Kennedy warned that the plurality opinion could transform virtually any state court property rights dispute into a "takings" claim. Any losing party, he suggested, could argue that the state court had "changed" established law to its detriment. In fact, within hours Ilya Shapiro of the libertarian Cato Institute Shapiro was hailing the four-vote opinion. "State courts are now on notice that they violate long-hailed property rights at their peril," Shapiro wrote. Four votes, of course, do not make a majority on the Supreme Court. A full court almost certainly would have rejected Scalia's position since Stevens has not embraced property rights claims in past cases. So Scalia's opinion adopting the idea of "judicial takings" represents an extended dictum of no real legal effect, unnecessary to the decision but an activist gift to property rights advocates in future cases. Kennth Jost is a  CP&DR  contributing editor and associate editor of  CQ Researcher . This piece also appears on his blog  Jost on Justice .

Pitting affordable housing advocates against local government officials, planners, and builders, a housing element bill has seemingly risen from the dead to become one of the hottest land use bills in Sacramento. Assembly Bill 602 would provide an unlimited time period during which someone could sue over a jurisdiction's housing element, which is intended to demonstrate how a city or county will provide its fair share of housing at various cost levels. According to the affordable housing advocates supporting the legislation, a 2008 Court of Appeal decision placed a 90-day statute of limitations on legal challenges to housing elements. The bill would permit lawsuits at any point during the housing element planning period. Two years ago, the First District Court of Appeal permitted advocates' lawsuit over the City of Pleasanton's housing element to proceed, but the court also ruled that suits must normally be filed within 90 days of housing element adoption (see CP&DR Legal Digest , September 2008 ). Richard Marcantonio, who represented the advocacy group Urban Habitat Program in the Pleasanton litigation, said AB 602 would restore "what everybody thought the law was before the Court of Appeal in the Pleasanton case rewrote the law." In the final weeks of last year's legislative activity, Assembly Democrats gutted and amended AB 602 – which had concerned insurance matters, – to address the housing element statute of limitation. The measure stalled in part because local government representatives and housing advocates could not negotiate an agreement. With assistance from Senate President Pro Tem Darrell Steinberg (D-Sacramento), Assemblyman Mike Feuer (D-Los Angeles) resurrected AB 602 on June 21, and the bill is set for a hearing in the Senate Transportation and Housing Committee on June 29. Most local government land use decisions come with short statutes of limitations. You have 30 days to sue over an environmental impact report, for example. The short time frame for filing lawsuits helps provide certainty on land use policy. Housing advocates say the housing elements should be an exception for several reasons: Because of the way planning cycles work, scores of housing element updates may get adopted within a matter of days. Advocacy groups say they can't keep track of all of the housing elements as they go through the process. The advocates also say that housing elements can have unique regional impacts, and, they note, the system is built on citizen enforcement. Finally, they say, the threat of litigation sometimes is necessary to get a local government to take affordable housing issues seriously. "Local jurisdictions are already skating by because there is not enough enforcement of affordable housing laws," Marcantonio charged. Naturally, cities and counties object to a bill that could extend their legal exposure, especially on the politically sensitive topic of affordable housing development. But even cities that are good actors on affordable housing and that have adopted thoughtful housing elements oppose AB 602. There is a feeling that housing advocates are over-reaching. Remember, the advocates won the 2008 procedural ruling in the Pleasanton case, and, with legal assistance from the attorney general's office, they won a Superior Court ruling on the merits earlier this year. As of right now, the City of Pleasanton cannot issue a building permit until it adopts a housing element acceptable to the court. What more do the housing crusaders want?  Bill Higgins, a lobbyist with the League of California Cities, noted that the requirements for housing elements have expanded during recent years. Housing elements now must address farmworker housing and emergency shelters, for example. Inventories of land available for housing development must be far more detailed than they used to be. "The universe of what you can argue is wrong with a housing element has grown a great deal," Higgins said. Environmental groups live with the California Environmental Quality Act's short statutes of limitations, and there are thousands of CEQA decision taken every year. Plenty of those actions – in regards to public works projects, commercial power centers and large subdivisions – have regional impacts. So what makes housing elements special? "The housing element occupies a unique place in California law," Marcantonio responded. "It occupies a unique place in local government law because a local government's ability to control its land use is subject to its ability to provide affordable housing." The housing element statute says that provision of housing is a matter of statewide importance and urgency. That's unusual language, he said. Under SB 375, the importance of housing elements only increases. Housing elements are essential for implementing sustainable communities strategies that are intended to reduce greenhouse gas emissions from automobiles. But if housing elements are open to litigation at any time, local governments and builders argue they will lack the certainty they need to make progress on development that is less automobile dependent.  The two sides have already resumed negotiations that broke off last year. But it's very important to remember that those talks are occurring in the shadow of a November ballot initiative that would suspend AB 32, and during a gubernatorial campaign in which greenhouse gas emissions regulation may be a central issue. Passing a bill so closely linked to lawyers, centralized planning and climate change may not be in the Democrats' best campaign interests for 2010. –  Paul Shigley

In upholding the City of Lemoore's development impact fees for a wide range of municipal facilities, an appellate court has rejected a homebuilders association argument that such fees must be based on a specific list of public facilities. The Homebuilders Association of Tulare/Kings Counties challenged a series of housing development impact fees adopted in 2006 and 2007 by the San Joaquin Valley city of Lemoore for community/recreation, park land, police, municipal facilities, fire protection, and refuse vehicles and containers. The case addressed several key practice questions regarding impact fees, including 1) whether the fees must be earmarked for specific facilities, and 2) to what extent the Quimby Act – which governs impact fees for parkland acquisition – is pre-emptive.The lawsuit also challenged the city's fee accounting practices. The Kings County Superior Court ruled for the city on nearly all claims. After the builders association appealed, a three-judge panel of the Fifth District Court of Appeal echoed the Superior Court's ruling and generally upheld the city's fees, with the exception of a fire impact fee on the east side of town. The appellate court first addressed the burden of proof. The court noted that while the public agency bears the initial burden of justifying its fees, the burden of proof ultimately falls on the fee challenger. The first issue of substance was that of the community/recreation fee. The city used an approach by which it valued the existing facilities and divided that total amount by the city's population to create a cost per resident. The city decided that new growth had to maintain the existing value of recreational facilities per resident. This is a fee calculating methodology referred to as "standard-based," rather than the more typical "facility-based" approach that uses a list of future facility needs. Lemoore's plan generally described the types of facilities that could be constructed, but the city did not commit to specific facilities. The builders association argued the city had to identify specific facilities that the fees would fund. However, the appellate court concurred in the city's approach, noting that the Mitigation Fee Act gives local agencies discretion when identifying the facilities to be developed. The builders association also argued that fees for recreation facilities were pre-empted by the Quimby Act. However, the court viewed the purposes of the Quimby Act as preserving recreational opportunities for new subdivisions. In this instance, Lemoore's impact fees were designed to fund unique facilities of broader benefit, and, therefore, were not pre-empted by the Quimby Act, the court ruled. Like the community/recreation fee, the parkland impact fee also applied, in part, to non-subdivision development. Again, the appellate court rejected the Quimby Act pre-emption argument, as well as the argument that a standard-based fee calculation was improper. The builders further argued that the city's 5-acres-of-parks-per-1000 residents standard (which is allowed by the Quimby Act), was inconsistent with the 3-acres-per-1000 residents standard set forth in the city's general plan. In an analysis that is not entirely clear, the appellate court agreed with the city that the 5-acre standard was not inconsistent with the general plan. The builders' objection to the public safety fee and municipal facilities fee posed another challenge to the use of a standards-based calculation that the city employed to ensure no dilution of existing service levels. Again, the appellate court held that the city's fee report provided ample supportive documentation to justify the charges. Where the appellate court agreed with the building association was with respect to the city's east side fire fee. The east side of the city is largely developed and is fully served by existing facilities. The revenue from the fee was to be used to pay back the city for facilities already constructed by the city to serve the east side. On this issue, the appellate court held the impact fees to be invalid because they were enacted for general revenue purposes. At the same time, the court upheld the west side fire fee because it would fund facilities that would directly serve the new development. That fee assumed the city would eventually annex substantial acreage (an assumption which effectively lowered the per unit fee). The court concluded that a sufficient basis existed to support the west side fee, even without annexation. The final category of fees challenged were fees for solid waste vehicles and equipment, which opponents argued were not capital assets and therefore not eligible to be funded by impact fees. Although the depreciation rate for these assets is much more rapid then other types of facilities, this equipment still qualified as capital facilities that could be funded by impact fees, the court ruled. The petitioner's final challenge was to the city's accounting practices. The court viewed this argument as a recast of the debate over standards-based versus facility-based fees. As the city was entitled to use broad facility descriptions when enacting the fees, a similar approach was sufficient when accounting for the fees, the court ruled. Presiding Justice James Ardaiz concurred in the ruling but expressed concern over the city's purported connection between facilities that serve the broader community, such as a military museum, to specific instances of new growth. "In my view, absent some showing of a more direct and specific relationship between the municipal improvement and the proposed development, such fees are seriously subject to question," Ardaiz wrote. The Case: Homebuilders Association of Tulare/Kings Counties, Inc. v. City of Lemoore, No. F057671, 2010 DJ DAR 8671. Filed June 9, 2010. The Lawyers: For the homebuilders: Walter McNeill, (530) 222-8992. For the city: Daniel Jamison, Dowling, Aaron & Keeler, (559) 432-4500. (William W. Abbott is a partner in the law firm of Abbott & Kindermann , LLP: California Land Use & Real Estate Lawyers.)