As 2002 was drawing to a close, forecasters with the National Oceanic and Atmospheric Administration announced that warming of the western Pacific heralded the arrival of an El Niño weather pattern. The influence of this periodically recurring phenomenon usually means heavier-than-usual winter rains for California. But even if California gets more than its average precipitation this winter, water scarcity — or at least the possibility of it — will dominate the state's environmental agenda during the next 12 months. Also high on California's agenda this year will be renewed conflict in the state's forests, and a debate over protections for wilderness and rivers. California's policymakers always obsess about water. It is the inevitable consequence of the state's mismatch between demography and geography. Still, several events coincide this year to give water policy even more prominence than usual. In the immediate future, water planners have to confront fallout from the December debacle in El Centro, where three members of the Imperial Irrigation District (IID) board left 17 million Southern Californians in limbo by rejecting a tortuously negotiated deal — endorsed by many of the valley's farmers — to sell water to the San Diego County Water Authority (SDCWA) and thereby enable the Metropolitan Water District (MWD) to continue receiving temporarily surplus Colorado River flows (see Page 1, , December 2002). Whether or not the IID-SDCWA deal goes through, and regardless of whether the federal government makes good on its threat to turn off the surplus tap, the high-stakes game of chicken between the IID board and the urban water agencies that covet IID's water foreshadows a troubled future. Similar conflicts will likely spread statewide in coming months as growing cities and suburbs try to slake their thirst by purchasing agricultural water in the problem-plagued transfer market. Even as MWD and SDCWA were getting stung by the IID, for example, the Met was hedging its bets by negotiating a contract to buy 205,000 acre-feet of water from Sacramento Valley irrigation districts. Several districts appear interested, and one — the Western Canal District of Richvale, which serves mainly rice growers in Butte County — has tentatively agreed to sell 26,060 acre-feet. That deal could be finalized this month, but there are rumblings of discontent similar to those that proved decisive in Imperial County and which will inevitably accompany any effort to move water from farms to cities. Agriculture-dependent communities fear that selling water means fallowing land, and reduced farm activity means less money flowing into the local economy in the form of wages and expenditures on equipment, fertilizer, pesticides and other products. The focus on water during the coming year is likely to intensify for two other reasons. One is the demise in the waning days of the 2002 congressional session of a Cal-Fed re-authorization and funding bill (the Senate approved the bill, but the House did not). The Cal-Fed failure leaves uncertain the federal commitment to the mammoth multi-agency effort, which is intended to revitalize the ailing San Francisco Bay-Delta complex — source of two-thirds of California's water supply. That issue will be back on the table this year. The other event likely to focus attention on water is the scheduled 2003 release of the latest update to the California Water Plan, the state's comprehensive forecast of supply and demand. Revised every five years and intended to serve as a framework for decisions by the state's water managers, the plan this time will include a major component focusing on the effect of global climate change on California's water supply. That evaluation is expected to offer little comfort to planners already unnerved by population projections, urban-rural squabbling and the infirmities of the state's aging plumbing system. A preview of sorts was provided in late November by a team of researchers from the Scripps Institute of Oceanography, the University of Washington, the U.S. Department of Energy and the U.S. Geological Survey. Their modeling, which used temperature data to predict likely changes in precipitation and runoff patterns for three major river systems in the West — the Columbia, Colorado and Sacramento — suggests a dramatic reduction in winter snowpack and an increase in winter rainfall. That will mean less water flowing into reservoirs from snowmelt during dry months, but more pouring in during flood-prone winter months when there is no room to store it. Rivers are the centerpiece of another issue affecting California during the next 12 months, as U.S. Sen. Barbara Boxer seeks support for a major wilderness bill. Her California Wild Heritage Act, S. 2535, would designate 43 new federal wilderness areas in the state totaling 1.2 million acres, add 1.2 million acres to existing wilderness areas, bring another 473 miles of streams under protection as "wild and scenic" rivers, and establish several other conservation and study areas. Companion measures were introduced in the House by Reps. Hilda Solis (D-El Monte) and Mike Thompson (D-Napa). Only one piece of legislation in state history has encompassed more wilderness acreage: Sen. Dianne Feinstein's California Desert Protection Act of 1994. When the wild and scenic rivers component is added, Boxer's bill ranks as the most far-reaching California wilderness bill ever introduced. Although the state Legislature and numerous environmental organizations have endorsed the bill, many rural counties oppose it. More importantly, Boxer's proposal will face scrutiny from a Congress in which key committees are dominated by Republican lawmakers unsympathetic to environmental legislation; even if the bill should leap that substantial hurdle it would land on the desk of a president who is unlikely to sign it. California also is likely to be among the first states to feel the effects of the Bush administration's move to speed "thinning" operations in national forests to reduce wildfire danger. Announced in early December — just two weeks after the administration proposed new regulations allowing individual forest managers to adopt long-term management plans without subjecting them to lengthy public environmental reviews — the proposed thinning regulation would exempt brush and tree removal from environmental review and challenge if undertaken to reduce fire danger. Both proposed sets of forest regulations could be in place by summer. The National Forest Service has identified 10 sites nationwide for pilot thinning projects, two of which are in California's Mendocino and El Dorado national forests. The proposals have been denounced by environmental groups, which say the Bush Administration is using an exaggerated threat of fire as an excuse to circumvent the National Environmental Policy Act and open national forests to commercial logging without proper evaluation or public input.

I have a cranky thesis about housing: Working-class people should not be forced to live in projects that advertise the poverty of the residents. "Welcome to Casa Pobreza! We Have Pride in Ourselves — Even if Nobody Else Does!" Instead, low-income housing should be indistinguishable from the full-price product, including the same level of design and construction. And that means that developers should probably spend as much to build affordable housing as the market-rate stuff — possibly more, because low-income housing tends to receive less maintenance over the long-term than fancier units, whose owners can afford to repaint and re-roof them periodically. That thesis is one reason why North Beach Place provides a powerful dose of reality. This development near San Francisco's Fisherman's Wharf delivers pretty much everything I could wish for in affordable housing: An attractive project in a desirable part of town, good architecture and urban design, and even high-quality retail. The price of this project, on the other hand, knocks the wind out of me: $106 million of which $93 million is the construction cost of 341 housing units. According to my arithmetic, that means each unit costs an average of $272,000. The price of affordable housing units varies widely by city and neighborhood, but many nonprofit organizations try to budget individual units at slightly more than $100,000. The high price of the North Beach units seems especially pertinent because the project has received tax credits worth $55 million, reportedly the largest amount ever awarded to a single project in California. Given the scarcity of tax credits, is this the best possible use of this money? Designed in the storefront style that puts retail at the street level and apartments on upper stories, the new complex is built on a two-block site formerly occupied by an aging, bunker-style type of public housing that had become a neighborhood eyesore. North Beach Place replaces the 229 units of public housing contained in the former complex, while adding another 112 units of low- and moderate-income housing, including units for seniors, others that are accessible to people in wheelchairs, and still others for people with sight and hearing problems. The new units charge rents on a sliding scale, depending on the income of the renters, who will pay one-third of their monthly income in rent. (That will range from $250 a month up to $1,500.) The developers are The BRIDGE Housing Corporation, the Stewart Company and E.M. Johnson Interests, all of San Francisco. From the point of view of architecture and urban design, North Beach Place is a model of how to integrate low-income housing seamlessly into an affluent community. This project is a mixed-use complex that combines public housing units with low-and moderate-rate units, including several dozen units designed for seniors. At the center of the two-block project is a turnaround for trolley cars, qualifying North Beach Place as transit-oriented. And the building provides 34,000 square feet of retail space, including an outlet of Trader Joe's, the discount/gourmet grocery store. The presence of a popular retail anchor like Trader Joe's means residents of the entire neighborhood will use the building, which helps weave the project into the fabric of the neighborhood. The project also contains 3,000 square feet of "incubator" space in which residents can start their own businesses. All of these urban planning and social aspects are commendable. But, again, what about the money? Ironically, the financing scheme for North Beach Place is actually less complicated than those of many smaller low-income housing projects, which often require eight or nine different funding sources. North Beach Place has "only" five: HUD has contributed $23.2 million, which includes a $3.2 million demolition loan and a $1.45 million loan for counseling and other services to displaced residents (which represent about two-thirds of the renters in the prior project). The Mayor's Housing Office contributed $10 million to the project. Citibank provided a construction loan of $81 million for the housing, and a separate $4 million loan for the commercial space. The affordable housing program of Federal Home Loan Bank provided a $1 million grant. Those loans will be paid off, in part, by the proceeds of selling the low-income housing tax credits to investors, for an expected $48.5 million. The federal tax credits, worth $38.5 million, will be paid out in equal installments during a 10-year period, while the state credits, worth about $17 million, will paid over four years. On average, the developers expect to receive about 86 cents on the dollar for the tax credits — a surprisingly slim discount that attests to the growing appeal of the credits to investors: In 1993, the sale of tax credits yielded 54 cents on the dollar. Why is so much money being spent on a single project? Barbara Smith, a project manager with the San Francisco Housing Authority, has heard the question before. "That is the cost of doing business in San Francisco," she told me. Fortunately, the San Francisco Housing Authority already owned the 4.9-acre site, which would have been unthinkably expensive in the high-rent North Beach district. The site, however, was costly in different ways. The site is located on fill—a type of soil notorious for liquefying during earthquakes. To keep the building safe, construction workers must drive piles about 60 feet deep. Other costs include remediation of lead traces in the soil, and the removal of underground fuel-storage tanks. Smith sounded ambivalent about the project costs. "We wanted to maximize the density of the site, and there are not a lot of opportunities to build affordable housing in San Francisco," she said. It is not news to anybody in the affordable-housing industry that building housing in dense urban areas — especially housing that a crank like me can love — is expensive. But in a state that needs thousands of affordable housing units, the budget of North Beach Place is a reminder that our housing dollars only go so far. You remember the old joke in which the bartender observes that he does not see many kangaroos in his tavern. "At these prices," the kangaroo replies, "you may not see many more."

The California Coastal Commission has the authority to review an extension of offshore oil drilling leases that the federal government granted to oil companies, the Ninth U.S. Circuit Court of Appeals has ruled. The unanimous three-judge panel upheld a district court decision that said the extension of oil drilling leases was subject to review by the state under the federal Coastal Zone Management Act (16 U.S.C. Sections 1451-1465) and that the federal government did not adequately document that the extensions were exempt from environmental review under the National Environmental Policy Act (NEPA). The case was seen as an important one in determining the state's ability to regulate drilling in coastal waters outside the three-mile-wide coastal zone that is directly under state control. At issue were 36 leases for oil and gas drilling several miles off the coast of San Luis Obispo, Santa Barbara and Ventura counties. Federal regulators granted the leases between 1968 and 1984. All the leases have been extended ("suspended" in federal parlance) in the past or the leases would have expired years ago because the four companies that own the leases have not produced paying quantities of gas and oil. The latest round of suspension was approved in 1999 and was the subject of the litigation. When the lessees requested suspension of all 36 leases in May 1999, the state Coastal Commission said it intended to review the suspensions for consistency with the California Coastal Management Plan. Federal agencies said the state had no authority to intervene and approved the suspensions. California then filed suit against the Interior Department and the four energy companies, arguing that the United States had violated the federal Coastal Zone Management Act and NEPA. U.S. District Judge Claudia Wilken ruled for the state. The Interior Department and the lessees appealed, but the Ninth Circuit upheld the lower court. The Interior Department argued that allowing the state to review lease suspensions would be duplicative because the state would get to review exploration or production activities that take place under the leases. Congress explicitly barred repeated review of activities described in exploration, development or production plans, the federal agency argued. But the Ninth Circuit ruled that Congress itself had rejected the Interior Department's line of reasoning. In 1990, Congress passed a bill overturning the decision in Sec'y of the Interior v. California, 464 U.S. 312 (1984), in which the U.S. Supreme Court held that a lease sale was not subject to consistency review by the state. "Congress has made it clear that the statute does not prohibit consistency review of federal agency activities that are not subsidiary to exploration, and development and production plans," Chief Judge Dorothy Nelson wrote for the court. "The exploration plan and development and production plan are not the only opportunities for review afforded to states under the statutory scheme." Nelson noted that the state and its counties have never had the chance to review the leases, all but one of which predate adoption of the state Coastal Management Plan. The court also rejected the Interior Department's contention that no environmental documentation was required because the lease suspensions were categorically exempt, and none of the exceptions to the exemption applied. Instead, the court sided with the state and environmental groups. They argued that the lease suspensions were not exempt from review because of changed conditions, including the expansion of territory toward the lease areas by the threatened sea otter, and the designation of the Monterey Bay and Channel Islands national marine sanctuaries. "In many instances," Nelson wrote, "a brief statement that a categorical exclusion is being invoked will suffice. Here, concern for adequate justification of the categorical exclusion is heightened because there is substantial evidence in the record that exceptions to the categorical exemption are applicable. … he agency must at the very lease explain why the action does not fall within one of the exceptions." The court pointed to regulatory provisions for endangered or threatened species and for ecologically significant or critical areas. The court also noted that Gov. Gray Davis and U.S. Sen. Dianne Feinstein have expressed reservations about the lease suspensions because of the infamous 1969 offshore oil spill near Santa Barbara. The court did not order preparation of an environmental impact statement. The court only required the Interior Department to provide a "reasoned explanation for its reliance on the categorical exclusion." The Case: State of California v. Norton, No. 01-16637, 02 C.D.O.S. 11546. Filed December 2, 2002. The Lawyers: For California: Jamee Jordan Patterson, supervising deputy attorney general, (619) 645-2001. For Norton: Thomas Sansonetti, assistant attorney general, (202) 514-2000.

Following a meager five-point victory against a bumbling opponent and facing an 18-month budget deficit estimated at $35 billion, Gray Davis will be sworn in this month for his second term as governor. He will govern a state whose voters are perfectly happy with a suburban lifestyle, at least according to the polls. So it would not seem likely that Davis is in a position to do anything innovative or trailblazing in the area of land use planning and growth policy during his second term. Yet there is probably more second-tier scuttlebutt about growth going on in Sacramento these days than at any time in recent history. Sacramento is overwhelmingly Democratic, which increases the chances that growth policy will be substantially altered. And as a lame-duck politician — he's termed-out as governor and has already announced that he will not run for president in 2004 — Davis may well be tempted by that dangerous political phenomenon known as "legacy time." In other words, something might happen on growth policy during the second Davis Administration in spite of the circumstances. Success in other states Davis is neither a visionary nor a policy wonk, and he is one of the most risk-averse politicians in recent American history. These characteristics are almost exactly the opposite of most governors during the last 30 years who have taken on growth as an issue. Maryland's Parris Glendening, for example, was a true policy wonk. A former government professor at the University of Maryland who had won narrowly the first time out, Glendening fully expected his "smart growth" effort the further weaken his chances for re-election. In the end, it did not and he won re-election easily. Furthermore, Davis's administration has never made growth per se a major issue — at least, the governor has never framed the growth issue in a comprehensive and coherent way. His predecessor, Pete Wilson, who was regarded as a growth management guru during his mayoral days in San Diego, tried hard to frame the growth issues coherently and comprehensively, though he proved unable (or unwilling) to do much about it before he left office four years ago. And even Davis's opponent Bill Simon, who ran probably the worst gubernatorial campaign in recent California history, put out a coherent position paper that took on the issues in a sweeping fashion. As the first Democratic governor in 16 years, Davis was able to bring a collection of interesting growth policy thinkers into his administration. Caltrans chief Jeff Morales has reoriented the transportation agency around urban planning. Julie Bornstein, the director of the Department of Housing and Community Development, is a strong advocate who has been innovative. Resources Secretary Mary Nichols is an experienced urban environmentalist who understands growth issues well. Even the Health and Human Services Secretary, Grantland Johnson, is an experienced and knowledgeable growth policymaker because of his long experience as a Sacramento city council member and county supervisor. How many welfare czars know what a lot split is? The fact that all these Davis appointees are interested in growth is one of the reasons that the issue won't go away. Another is the fact that the Democratic legislature won't let go of it either. The Smart Growth Caucus is not overpowering politically, but it has gained enough strength to get some bills to Davis's desk. And a final factor is that the voters — even though they are happy with suburban living, according to the latest Public Policy Institute of California poll — keep approving big bond issues that are sure to shape the state's future growth patterns. The net result of all these forces is that Gray Davis has been handed two potentially strong and powerful tools to shape growth policy in the state no matter how big the state budget deficit is. The first is AB 857, the bill that requires state agencies to integrate their capital spending consistently around a set of "smart growth" principles (see , October 2002). The second is the tens of billions of dollars in state bond funds that voters have approved for schools, open space, housing, and other facilities important to future growth. Conceptually, the new law and all the bond money form the outlines of a California version of the Maryland smart growth strategy — a coherent policy of state investments to direct future growth that does not step on local land-use decision-making powers. More practically, they are ultimately about the use of power and money at the state level. For whatever he may lack in vision, wonkiness, and guts, Gray Davis understands how to use power and money in Sacramento to accomplish goals that are important to him. So far, the Davis administration has talked an impressive line about implementing AB 857, which calls for the state to make infrastructure investments based on promoting infill, encouraging compact development, and protecting environmental and agricultural resources. The Governor's Office of Planning and Research (OPR) has been on the conference circuit since fall telling local planners and electeds that the administration is serious about the bill. (AB 857 also dovetails with an ongoing General Plan guidelines revision that OPR is preparing.) At this point, Davis has put OPR in the hands of Tal Finney, a high-energy, high-level political operative who is close to Davis and his inner circle. A home run for bonds? Using the bond funds to effect change in state growth policy will be trickier. The vast majority of the money is earmarked for schools, and as Glendening discovered in Maryland, the school bureaucracy is more resistant to attaching smart growth strings than even the pavement crowd. Some of the other bond money — open space, for example — is already earmarked for specific projects or will go to local governments on a formula basis. Further, the bonds came out of the Legislature with certain rules and expectations that were shaped largely by Senate leader John Burton, who is the most powerful legislator in Sacramento, but not one particularly interested in growth policy. But to an extent, bond funds can be used to leverage a certain growth pattern. Bond money could even reinforce the policy choices created by AB 857. Davis appears perfectly capable of using these levers if he wants to. The question is whether he wants to. During his second term, Davis will almost certainly be obsessed by two things that would seem to be in contradiction to one another: The budget deficit and his legacy. It is difficult to imagine how a strong growth policy fits into either one of these obsessions. There is always the argument that smarter growth policy will reduce infrastructure expense and, therefore, cost the state less money. But recent experience suggests that during bad budget times, California fiscal conservatives would rather not spend infrastructure money at all. Given the fact that he will be out of office by 2007, Davis will almost certainly choose not to build things, rather than decide to build them smarter or most cost-effectively. Put another way, Davis likely will implement short-term solutions rather than address the long-term problem. He would not be the first governor to follow this path. As far as the legacy goes, the recent open space bonds provide the governor with an opportunity. It will be very tempting to build the legacy with a few high-profile open space purchases, such as Ahmanson Ranch adjacent to Los Angeles (see , December 2002). It's more difficult for a lame-duck governor whose general fund is evaporating to make strategic open space decisions that protect habitat or farmland and guide growth in a reasoned manner — especially when those decisions fail to generate headlines, and might even anger people. So, can we expect to see a comprehensive growth strategy emerge during the next four years? Maybe. But it is more likely that we will see a lot of muddling through. A few bills here and there will inch things forward, and smart growth moles in the administration will embed smart growth values in a bunch of small programs or bond criteria. Given a governor who received less than half the vote and a $30 billion-plus deficit, maybe that is the best we can expect.

Urban transportation panacea or mobility-oriented snake oil? The Segway Human Transporter is either, depending upon whom you ask. The device either will change the way we get around in cities, or it will be the pedestrian-version of the Edsel. No matter, we should gird ourselves for statewide debates during coming months regarding regulation of the Segway HT (or simply "the Segway"). For those who missed the heavily orchestrated publicity events — most recently a video press release including the device's inventor Dean Kamen and Amazon.com founder Jeff Bezos — the Segway is a personal transportation device that looks like a pogo stick with Frisbee-sized wheels. With the aid of gyroscopes and other technology, the device can purportedly stop and turn on a dime. The invention travels up to 12 miles per hour. That speed is faster than many people ride a bicycle and four times faster than the average pedestrian's pace. Segway retails on Amazon.com (the exclusive distributor) for $5,000. Segway entrepreneurs have claimed that it will revolutionize urban mobility by extending the range of "walking trips," thus getting more people out of cars. The specific selling point seems to be the device's usefulness in highly urban settings, which should draw interest from urban planners dealing with transportation, recreation, or the land-use and transportation connection. New Hampshire-based Segway has captured the imagination of many a high-tech devotee, and the company has cleverly worked 32 state legislatures into rewriting vehicle codes to accommodate the Segway. In addition to gee-whiz lobbying in which lawmakers got to ride on the provocative device, Segway has been busy with loaner and limited sales programs to government and industry to gain broader acceptance — notably with law enforcement agencies. Though the blitzkrieg lobbying has met with resounding success before the public has had a chance to understand what the Segway is, concerns are already surfacing. Within weeks of an April launch of a loan and limited-sale program in Atlanta, a downtown safety officer was injured using the device on a driveway. The lobbying activity reached California earlier this year, and Gov. Davis signed SB 1918 in September. Carried by East Bay Democratic Sen. Tom Torlakson, the law actually classifies a user of the 84-pound mechanized transporter as a pedestrian. This means that use on sidewalks is granted statewide unless otherwise prohibited by a local agency. According to the law, Segway riders are not allowed in places where pedestrians are not permitted, such as streets and bike lanes. It is up to local government to disagree formally through prohibition ordinances. The law takes effect in March 2003. Not so fast, say the state's most organized pedestrian advocacy groups. Despite the Legislature and governor's stamp of approval, cities and counties own and maintain most of the state's sidewalks. Walk San Francisco, and the Senior Action Network stand firmly opposed to Segway use on sidewalks. With the help of San Francisco Supervisor Chris Daly, they successfully lobbied for passage of the first Segway ban in the country in San Francisco in late November. "We are not against the Segway," said Michael Smith, President of Walk San Francisco. "But since 1940, San Francisco has prohibited vehicles on public walkways. The Segway is a vehicle. We see it as a pedestrian SUV. Its riders will be able to muscle over walkers. Segways belong in the street with other wheeled vehicles, like bicycles. To allow Segway's promoters to elbow onto pedestrian walkways is to invite major safety problems." Smith said a host of other Northern California cities, including Berkeley, San Jose, and Santa Cruz, are currently looking at San Francisco's ordinance banning the Segway. Other alternative transportation groups are equally skeptical. "The Segway invention is an exciting thing," said Christy Kimball, Northern California campaign manager for the Surface Transportation Policy Project. "It holds an incredible potential to replace short car trips. However, we need to be realistic about where it belongs on our streets. The widespread use of Segway will require a new type of street design that better accommodates slow vehicles. Rather than restricting Segways to sidewalks, as the state law does, it would make a lot more sense to allow Segways to use bikeways or slow streets or shoulders of all streets. The transportation opportunities and constraints have not been properly thought through." Torlakson's bill essentially shifted the debate to the local level. The grass-roots protest and subsequent ordinance in San Francisco are likely precursors to discussions in council chambers and supervisor hearing rooms across the state. And the dearth of data on market acceptance, pedestrian safety, sidewalk capacity, and potential Segway/automobile/pedestrian conflicts, promises to make for a debate that will be short on information and long on speculation. If Kamen's invention does not end up really changing the way we move through cities, it will certainly raise the level of discussion about how we ought to move through them. And it provides a startling lesson in how a quirky invention coupled with a slick lobbying campaign can sway politicians desperate to be a part of the next trend – whether well thought out or not.

In an election with the typical mix of results, the pro-growth side won 19 of 32 easily classifiable local land use ballot measures on November 5. However, in votes regarding large, well-defined projects, the slow-growth side prevailed most often. The 59% pro-growth winning percentage contrasts with the past two major election cycles. In November 2000, the slow-growth side won 62% of 55 election contests. In November 1998, the slow-growth side won 18 of 35 ballot measures. In an election closely watched around the nation, Nevada County voters said no to a property rights initiative. Measure D would have required the county to compensate landowners for regulations that inhibit development. Slow-growth advocates lost in some surprising places, including the Town of Windsor in Sonoma County and the Town of Tiburon in Marin County, both places where slow-growth sentiments hold strong. Windsor voters rejected a proposed housing permit limit, while Tiburon voters narrowly said no to additional restrictions on undeveloped parcels. Slow-growth advocates also lost in Berkeley, where voters overwhelmingly rejected a measure to limit building height. But, truer to form, Berkeley voters agreed to let the City Council amend a waterfront specific plan, probably in a way that blocks a major hotel and restaurant development proposal. In the Central Valley towns of Galt and West Sacramento, initiatives that aimed to slow or alter growth failed. Voters in Galt, one of the state's fastest growing towns, rejected a building permit cap. In West Sacramento, an initiative that would have rezoned much of the city's extensive industrial land failed to receive even one-third of the vote. Yet development backers lost some significant elections. City of Ventura voters rejected a proposal to build 1,390 housing units in the hills above town. And in nearby Santa Paula, voters refused to expand the urban restriction boundary they approved two years ago to accommodate a large housing and hotel development proposal. Election day was good to affordable housing advocates. Not only did state voters approve a $2 billion bond for affordable housing projects, voters in San Francisco approved that city's own $250 million bond to build or rehabilitate low- and moderate-income housing. In San Diego, voters approved a city plan to develop or acquire up to 5,000 units of affordable housing. And in Santa Rosa, the electorate backed a city proposal to double the number of subsidized units in town. Sales tax increases for transportation projects did not fare well. Voters in Fresno County declined to extend that county's existing half-cent tax for transportation, while voters in Merced and Solano counties did not provide the two-thirds majority required to pass new half-cent taxes. However, in Riverside County, an extension of a half-cent tax won 70% approval. As for municipal organization, voters created a new city in Rancho Cordova, rejected incorporation of Castro Valley, and kept Los Angeles whole. Takings initiative fails The failure of the Nevada County's Measure D property rights initiative surprised many observers, and allayed the fears of planners who thought passage might presage similar initiatives in other counties. The seven-sentence initiative would have required the county to compensate property owners for regulations that inhibit development. A rural county in the Sierra Nevada Mountains, Nevada County has a long history of defending property rights (see CP&DR, June 2002). So when property rights advocates presented an initiative that mimicked one approved by Oregon voters in 2000, it looked like a sure thing. During the campaign, backers of Measure D outspent opponents 10 to 1. And two supervisor candidates who supported Measure D defeated two incumbents who opposed the initiative. Yet Measure D attracted only 43% of the vote. The loss appears to be at least partly to blame on a campaign that never presented a clear message and might have had too many spokespersons from too many perspectives. "The voters perceived that there was an enormous uncertainty both on the fiscal side and on the planning side," said Supervisor Peter Van Zant, who ran the anti-D campaign. Proponents were further hurt when councils in all three Nevada County cities — Nevada City, Grass Valley and Truckee — adopted resolutions opposing Measure D, Van Zant said. Plus, advocates never presented a financial analysis. That meant the only financial information available to voters was a study prepared by the county that said the initiative could cost taxpayers $10 million a year. Sharon Boivin, a planning commissioner and former county planner who opposed the initiative, said pro-D literature was confusing to the average person. Plus, she said, opponents were easily able to convince voters that Measure D could hurt their property values by permitting the landowner next door to build whatever he wanted. But why did the supervisor candidates who supported Measure D still win? Boivin thinks most people simply voted the party line, even though supervisorial races technically are nonpartisan. The two winners, Drew Bedwell and Robin Sutherland, are conservative Republicans, and the majority of people in their districts are registered Republicans. Plus, their supporters had spent three years painting incumbents Bruce Conklin and Elizabeth Martin as "lunatic fringe liberals who want to take away your property rights," said Boivin, who has been Conklin's planning commissioner. Permit caps lose Initiatives to cap the number of building permits in Galt — a fast-growing city between Sacramento and Stockton — and in Windsor — a 10-year-old city just north of Santa Rosa — failed to win voter approval. The Galt measure would have limited single-family housing permits to a maximum of about 300 a year, depending on general plan revenue. Under the initiative's formula that figured growth was good financially, the city could limit permits to as few as 123 annually if city finances were healthy. With a population of about 21,500, Galt has grown by nearly 10% a year during the last decade, transitioning from a farm town to a bedroom community for Sacramento. And plenty more growth is proposed, including a 2,500-unit retirement development. The measure split the City Council. But with 55% of voters against Measure R, pro-growth councilman Darryl Clare winning re-election, and slow-growth mayor Bob Kraude losing, voters sent a clear message. "The voters felt that best way to control growth is at the council level," Clare told the Sacramento Bee. While the Galt election was a fairly black-and-white decision on growth, the Windsor election was more complicated. Measure X would have limited residential permits to a three-year average of 75 per year, with limited exemptions for affordable housing projects. The City Council unanimously opposed the initiative, but Sonoma County environmental groups were divided. Proponents argued that the initiative was necessary because the city has not enforced a growth management ordinance that limits new homes to 150 per year. But other potential backers of the initiative stayed away because the initiative made no distinction between 75 apartments and 75 large-lot, single-family houses. "It really did split some traditional allies," said Kelly Brown, Marin-Sonoma field representative for Greenbelt Alliance, which opposed the initiative. "They had the right goal in mind. Controlling growth within the urban growth boundary is a concern in Sonoma County. But we felt like Measure X was a regressive policy." No one expects the growth wars in Windsor, which has roughly tripled in population to about 23,000 during the last two decades, to abate because of the Measure X defeat. Ventura County says no As has become the norm during the last several elections, Ventura County was a center of ballot-box planning. In November, there were four initiatives in four cities. Two were backed by development interests, and two by slow-growth proponents. All four initiatives failed by wide margins. The slow-growth side won in Ventura and Santa Paula. In Ventura, 70% of voters rejected a complex initiative known as the "Open 80 Plan." The intent was to let property owners build 1,390 houses on 800 acres in the undeveloped hills above town. In exchange, the property owners would dedicate about 3,000 acres as open space. The vote was the second in two years that protects the hillsides. Last year, Ventura voters approved a measure that requires voter approval of any proposal to extend sewer and water services to the hillside territory. Santa Paula was the scene of the first true test of a Save Our Agricultural and Open Space (SOAR) boundary. Voters have approved SOAR boundaries in seven Ventura County cities since 1995. The SOAR initiatives require voter approval of development on land designated for agricultural or open space. Three previous subsequent votes under SOAR have been for a church, an assisted living center and a sports park, and all received voter approval. But this year, developer Pinnacle Corporation of Arizona put forth an initiative in Santa Paula that would have expanded the SOAR growth boundary by 5,200 acres in an area known as Adams Canyon. Proposed was a development of about 2,200 housing units, a hotel, a golf course and retail uses, although the exact project was not defined for voters. Opponents said Santa Paula already has ample room to grow and would be better off revitalizing neglected parts of town. Pro-growth forces won in Simi Valley and Ojai. In Simi Valley, voters rejected an initiative to shrink the SOAR boundary by 2,800 acres. The initiative would have blocked a development proposed by Tosco of a 400-acre industrial park, 1,600 housing units and a 42-acre cemetery. Instead, voters stuck by the SOAR boundary they approved four years earlier. In Ojai, voters said no to an initiative that would have required every project to mitigate its traffic impacts fully. The measure appeared to prohibit any project that would add even one vehicle to Ojai's clogged streets. The City Council contended the initiative was unconstitutional and sued to keep it off the ballot. A Ventura County judge and the Second District Court of Appeal decided to keep the measure before voters, but they rejected the plan by nearly a two-to-one ratio. State gets 478th city Voters in the Sacramento County community of Rancho Cordova approved incorporation of that county's third new city since 1997. However, voters in the Alameda County community of Castro Valley rejected an incorporation proposal. Both votes were lopsided. The contrasting votes might be the result of two different approaches. In Rancho Cordova, a group of community leaders had been working steadily on incorporation since the 1980s. They persisted despite stiff resistance from the county and even got Assemblyman Anthony Pescetti, a Rancho Cordova resident, to carry a bill that prevented the county from dragging its feet any longer. Rancho Cordova, a community of about 55,000 people along Highway 50, a few miles east of Sacramento, will officially become a city in July 2003. In Castro Valley, however, there was no grass roots campaign behind incorporation. At the behest of Supervisor Nate Miley, who promised during his 2000 election campaign to pursue incorporation, Alameda County served as the applicant for incorporation. There was no built-in constituency of incorporation supporters who had signed petitions. In fact, the initiative got about half as many votes as a typical petition would have required signatures simply to qualify incorporation for the ballot. Diana Hanna, co-founder of an incorporation opposition group called Castro Valley Truth, said she and others opposed incorporation because a new city would not be bound by an urban growth boundary for unincorporated areas that Alameda County voters approved in 2000. The urban growth boundary initiative protected the undeveloped hills of Castro Valley. Plus, she said, feasibility studies made it clear that a new city could survive financially only if it approved substantial new commercial development. With a population of 58,000 Castro Valley is mostly a residential area. Proposals to carve up the City of Los Angeles into three cities failed miserably. The proposed secession of the 1.6 million-person San Fernando Valley lost 2-to-1 citywide. In fact, only half of voters in the Valley backed secession. The proposed Hollywood secession faired even worse.

An exemption to the California Environmental Quality Act for construction of a sea wall below two houses has been upheld by the Fourth District Court of Appeal. The court ruled that the potential collapse of a bluff could threaten public safety and qualified for an emergency exemption under CEQA. The City of Solana Beach, in San Diego County, was the locale for the case. In early 2000, the ocean began eating into a bluff between two sea walls. In February, a 10-foot overhang north of the site collapsed, fracturing the sandstone bluff. Over the following several months, the ocean created a 12-foot deep notch at the base of the bluff. In January 2000, the owners of two houses on the top of the bluff filed an application for a permit to fill the notch. On February 29, 2000, the Solana Beach Planning Department issued a director's use permit with conditions. In June, however, the homeowners requested a permit modification to allow them to construct a steel-reinforced wall. The city determined a steel wall would need a special use permit. As permit processing continued, the homeowners requested an emergency exemption to CEQA review. On December 19, the City Council approved the special use permit based on an emergency exemption to CEQA. The group CalBeach Advocates sued, arguing that the project did not qualify for an exemption. San Diego County Superior Court Judge Judith McConnell (since elevated to the Fourth District bench) granted summary judgment for the city. CalBeach appealed, but a unanimous three-judge panel of the Fourth District, Division One, upheld the ruling. CalBeach contended that beach erosion was an ongoing condition, and not a sudden, unexpected occurrence. Even collapse of the bluff below the two homes would not be unexpected. CEQA limits the emergency exemption to occurrences involving clear and imminent danger. There was no need for immediate action, CalBeach argued. The group pointed to the length of time between the bluff fracture in February, and the approval of an emergency exemption in December. "We agree the failure of the bluff below Real Parties' homes is not unexpected," Justice Terry O'Rourke wrote for the court. "However, the anticipation of a collapse does not prevent it from being an emergency. Section 21080, subdivision (b)(4) exempts not only projects that mitigate the effects of an emergency, but also projects that prevent emergencies." The court pointed to two reports from civil engineers in late 2000 that said the bluff collapse was imminent, probably within a few weeks. "Real parties' residences are situated a mere eight feet from the edge of the bluff. For that reason, any collapse of the bluff would place both properties in danger," Justice O'Rourke wrote. "Further, the bluff collapse could threaten the safety of members of the public if it occurred when members of the public were near the bluff." The court also rejected CalBeach's argument that Solana Beach's CEQA findings were inadequate. Public Resources Code § 21168.5 governed the decision, and that section does not require any findings, the court held. The Case: CalBeach Advocates v. City of Solana Beach, No. D038885, 02 C.D.O.S. 10976, 2002 DJDAR 12731. Filed October 9, 2002. Ordered published November 6, 2002. The Lawyers: For CalBeach: Donald Wayne Brechtel, Worden, Williams, Richmond, Brechtel & Kilpatrick, (858) 755-6604. For Solana Beach: James Moose, Remy, Thomas & Moose, (916) 443-2745.

By any measure, a great deal has happened in San Marcos lately, and the city is feeling both the benefits and pressures of the growth and change. A city of 58,000 in northern San Diego County, San Marcos is the scene of a new 3,400-unit housing development, aggressive redevelopment by the city, extensive construction and rehabilitation of affordable housing units, and a growing California State University campus. City officials have worked to get control of their town's destiny. Capitalizing on a CSU campus that opened in 1990 and Palomar College, a huge community college across town, San Marcos leaders decided to fill the north county's "educational niche," City Manager Rick Gittings said. San Marcos is not a "college town," but CSU San Marcos is building its first dormitories. And apartments, condominiums, retail development and institutional uses such as health care facilities are part of a master plan for the university area approved in 1989. Development in the master plan area has quickened of late. "The last several years, we seem to have done a number of things right," said Mayor Corky Smith, who won a third, four-year term as mayor in November. But there are traces of discontent. Backers of an initiative that would require voter approval of zoning changes submitted petition signatures in October. Supporters came up about 30 valid signatures short of qualifying for the ballot, but they vow to return. The recent election could pose a problem for the huge San Elijo Hills development. Smith will now command a council majority that many people believe will not be as friendly toward the project. And traffic congestion remains a problem on city boulevards despite more than $100 million in improvements to surface streets and freeway ramps. Located on Highway 78 between Escondido on the east and Carlsbad and Vista on the west, San Marcos remained a rural backwater into the 1980s. The city incorporated in 1963, growing slowly and somewhat haphazardly for more than two decades. The lack of infrastructure became an issue during the 1970s, and voters eventually approved an initiative requiring development to pay its fair share of infrastructure capital costs, as well as operations and maintenance. But the city is still trying to catch up, Gittings said. Since the late 1980s, however, the city has seen a different approach to development. Larger projects based on specific plans or master plans have become common. The largest of these is San Elijo Hills. Approved three years ago, San Elijo Hills encompasses 3,400 single-family houses and condominiums, a school site and a 19-acre commercial center on 1,920 acres in the grassy hills between San Marcos and Carlsbad. About one quarter of the housing units — but none of the commercial amenities — have been built. Partially designed by New Urbanist architect Peter Calthorpe, San Elijo Hills was named "Master Planned Community of the Year" by the National Homebuilders Association earlier this year. The project has proven popular with buyers, too, as reflected by a price escalation. Currently, condominiums start at about $280,000, while most of the single-family homes — all of which are at least 2,300 square feet — run from nearly $500,000 to more than $700,000. These prices were unknown in San Marcos until very recently. Still, San Elijo Hills has its detractors. Cynthia Skovgard, an unsuccessful City Council candidate who headed the rezoning initiative, called the project "horrid, appalling and abusive" because it fills open space with houses. Access to San Elijo Hills and to a neighboring housing development is limited, with one two-lane road (now being widened to four) serving as the only route — and it provides a better link to Carlsbad and Encinitas than to the rest of San Marcos. An extension of one of the San Marcos's main boulevards to San Elijo Hills is planned, but money is lacking, Development Services Director Charles Schaffer said. The poor access is a sticking point with Mayor Smith, who earlier this year was on the short end of a vote to limit San Elijo Hills building permits until a new road is in place. The more immediate controversy has shifted to a golf course proposed for a ridgeline above town. Although it was empty land at the time, the city placed the San Elijo Hills site in a redevelopment project. In fact, most of the city lies in one of three project areas created from 1983 to 1989. As those areas grow, the city's tax increment grows. The city expects to get about $17 million in tax increment this fiscal year. Gittings conceded the city could not draw the same redevelopment boundaries under the 1993 reform of redevelopment law (see CP&DR, December 1993, May 1993). "I'm not so sure that ‘reform' was a good thing," Gittings said. San Marcos receives only 7.5% of property taxes — roughly half what many cities get — so it needs to be creative. "You can't do anything with 7.5 cents," he said "What we've done with the redevelopment areas is balance that a little bit." The city has indeed used its redevelopment agency to revitalize older areas, and the affordable housing program is ahead of most cities'. Since 1995, the city has added 1,500 deed-restricted units to its affordable housing inventory, Assistant City Manager Paul Malone said. New development, rehabilitation and conversion of existing mobile homes each account for about one-third of the total. About 1,000 more units are pending. That is a substantial turnaround from 10 years ago, when the city had an affordable housing deficit and was the target of a housing advocates' lawsuit. The city has also served as a developer to generate revenue. The city developed a recreational vehicle mall, and then invited tenants. A three-year-old civic center — half of which is leased to other public entities and private enterprise — is surrounded by about 50 acres that is available for site leases. Already, developers have constructed restaurants and two office buildings on the city-owned property. This approach has angered some. "They should sell out all of their real estate holdings and do what a city is supposed to do," said James Eubank, developer of a collection of eateries on San Marcos Boulevard called Old California Restaurant Row. "Take that money from all their real estate holdings and put it into some infrastructure," Eubank urged. Gittings defended the city's strategy and pointed to a voter-approved charter amendment that allows the city to develop land. The city is constantly searching for "revenue streams we can generate that the state can't get its hands on," he said. Contacts: Mayor Corky Smith, City Manager Rick Gittings, Development Services Director Charles Schaffer, City of San Marcos, (760) 744-1050. Cynthia Skovgard, initiative proponent, (760) 744-8380. Jim Eubank, Old California Restaurant Row developer, (760) 744-0550.

The Los Angeles Unified School District has embarked on a huge land-purchase effort as part of a massive school construction program. But because the cost of real estate in the region is so high — and available land is scarce — the district and other agencies are beginning to emphasize joint use. The 79 new schools that compose Phase I of the construction program all have been or will be designed with some level of community use in mind. And future phases of the capital improvement program will contain even more aggressive approaches to shared uses, said Glenn Gritzner, special assistant to LAUSD Superintendent Roy Romer. Assemblywoman Jackie Goldberg (D-Los Angeles), a former city councilwoman and LAUSD trustee, is pressing for more joint-use projects. To further her efforts, Goldberg has conducted two meetings with dozens of representatives of government agencies, nonprofit organizations and development interests. A third meeting is scheduled for this month. For a variety of political and economic reasons, LAUSD has built few schools during the last three decades. At the same time, the enormous district's student population has grown, and officials expect increased enrollment in the future. To accommodate current and future students, the district plans to build 79 new schools — including 15 comprehensive high schools — during the next few years. The district also plans a second phase to expand and upgrade 60 existing campuses and add playground space at 19 other schools within the next five years. On top of those 158 projects, the district needs 140 to 160 additional schools in future phases to eliminate the need for year-round schools, which is a priority for Romer. The LAUSD, however, serves some of the most densely populated areas in the country, and there is little vacant land for new schools. In many instances, the district displaces housing or businesses when constructing a new school. For the 79 new schools, the Board of Trustees has already approved more than 60 eminent domain resolutions involving hundreds of real estate transactions. Goldberg and others clearly want to see the new schools — but not at the expense of housing and jobs. The communities that need new schools are the ones that most need housing, jobs and other facilities, such as parks, libraries and community gathering places, said Suzi Hoffman-Kipp, an aide to Goldberg. But meeting numerous community needs is difficult because of differing and sometimes conflicting laws and administrative regulations. So Goldberg has gathered people to locate the hurdles and figure out ways to cross them. At the last meeting — which about 30 lawyers from a variety of entities attended — informal committees were assigned to answer 15 questions, such as whether the school district could use housing relocation money to create replacement units, and whether the district could sell or lease air rights above schools. These issues and questions are not new. A number of people, including the organization New Schools Better Neighborhoods, have been advocating these things for years. But as chairwoman of the Assembly Education Committee, Goldberg brings added weight to the discussions. Under Romer and the current Board of Trustees, the LAUSD is willing to consider joint-use projects, but some observers believe the district is unwilling to change its approach significantly. The district's Gritzner said LAUSD is not necessarily the best entity to be in charge of joint-use projects. "We want our schools to be the center of their communities. The superintendent has said that over and over again," Gritzner said. "But our job is not to plan housing and retail. We're not the Community Redevelopment Agency, nor should we be." True joint-use projects —parks or libraries shared by schools and the general public, a housing project next to a school, retail site leases — are tremendously complicated. "It's hard to even frame the questions," said Jane Blumenfeld, director of school facilities planning for the City of Los Angeles. "It's good, but it's very complicated. For us, joint use is critical because there are many, many needs." The school district has the money — voters approved a $3.3 billion bond for LAUSD in November and the district has been getting more state bond money than in the past — and the district has the will to build, Blumenfeld noted. Plus, the district is most often building in neighborhoods where parking, play space and other amenities are sorely lacking. So the city would like to work as many items into the school projects as reasonably possible. There is not a great deal the city could do for joint-use projects. What it can do is serve as a facilitator and provide interpretations to regulations and processes that aid the projects, Blumenfeld explained. Among those who often protest the loudest over a new school are the residents themselves. That is because the district buys up housing units to create a school site. Goldberg has insisted that housing advocates should be part of her discussions, which is a good sign, said Jan Breidenbach, executive director of the Southern California Association of Non-Profit Housing. In the past, school officials have not approached tenant groups until the deal was done, she said. "It will never be a perfect process, but … there are clever things that can be done," Breidenbach said. "I'll just be damned if we should have to make the choice — schools or housing." Goldberg's discussions could result in legislation, said her aide, Hoffman-Kipp. But the assemblywoman has decided nothing yet and has no timeline. She just does not want to see future joint-use projects take years longer to deliver than traditional school projects. As for the LAUSD, officials have identified all but two sites for the 79 new schools, and the district now controls about 60% of the land it will need. Four schools are complete, about two dozen others — including the district's first two new high schools in 30 years — have at least started construction, and plans are ready for many of the remaining Phase I schools. Designers have had some shared-use in mind for every school, even if that only means making bathrooms accessible for community meetings without having to open the entire school building, Gritzner said. Once it gets the Phase I schools complete, the district will have more breathing room to contemplate what it considers "robust" joint-use projects that entail funding from a variety of sources, joint-use agreements, and true sharing of maintenance, operations and liability, Gritzner said. And it will consider being a partner in projects that involve housing and businesses, he said. Contacts: Suzi Hoffman-Kipp, Assemblywoman Jackie Goldberg's office, (323) 258-0450. Glenn Gritzner, Los Angeles Unified School District, (213) 241-7000. Jane Blumenfeld, City of Los Angeles, (213) 978-1372. Jan Breidenbach, Southern California Association of Non-Profit Housing, (213) 480-1249.

Is it appropriate for designers to create objects that have no use beyond giving pleasure? In 1972, a French interviewer asked a similar question to the designer Charles Eames in the film "Design Q&A." His answer: "Who is to say pleasure is not useful?" Eames's rhetorical question can be rephrased in a positive way: Pleasure is a legitimate concern in design, and nowhere more so than in urban design. Just as we have outgrown the idea of strict functionalism, in which design is little more than finding the most efficient shape for a given purpose, we have abandoned the idea of the city as nothing more than a pure economic machine that contains housing, places of employment and ways of moving goods and people. We now think a city should provide pleasurable experiences — things to look at, places to hang out, beautiful landscape to stroll along — to fulfill its role as a city. Pleasure, however, is not a word that forms itself soundlessly on one's lips when looking at downtown Fresno. A city with a large downtown dating from the 19th century, Fresno was once a place of graceful, turn-of-the-century mansions and elegant apartment buildings from the 1920s. Now, however, the vacant lots and blocks of isolated, aging buildings emanate a sense of desolation and exhaustion. Until recently, the downtown area was virtually deserted on evenings and weekends. This enervation is a strange fate for Fresno, the hub of the San Joaquin Valley. "Fresno grew up as a center of agriculture," says urban designer Richard Thompson of A.C. Martin, the Los Angeles-based architectural firm that served as a design consultant for Vision 2010, the latest downtown plan. Set amid the plains of the San Joaquin Valley, Fresno's "magnificent buildings … seemed to come out of the middle of nowhere," he added. The magnificence of Fresno during the 1920s is hard to visualize nowadays. The city's downtown area is perhaps the most radical example in California of the abandonment of the traditional downtown core in favor of the suburbs. Like many cities during the postwar years, Fresno exploded with suburban growth (Fresno is now California's sixth largest city, with a population of nearly 500,000 residents) and Fresno County probably has more "rural sprawl" than any other region of the state. Making matters worse, earlier generations of city officials demolished some distinctive masonry buildings dating from the 19th Century during the period when we believed that buildings were the source of urban blight. Those buildings are mourned now because they would have added character, history and scale to a downtown revival. In Fresno's favor is an energetic redevelopment department that has worked hard to attract developers. During the past several years, those efforts have attracted nearly 30 projects or proposals, some recently completed, others under construction and still others unscheduled possibilities. A 12,500-seat baseball stadium, built by the city and rented by the Fresno Grizzlies minor league baseball team, reached completion in May. The stadium is located in the "entertainment district," just northwest of the dilapidated Fulton Mall, one of the oldest pedestrian malls in the country. The ballpark attracted 500,000 spectators during the Grizzlies' 2002 season, a stronger-than expected showing that suggests the ballpark could be the long-sought anchor of the entertainment district. A federal courthouse broke ground in the civic center about seven blocks east of the new ballpark, while a regional medical center is under construction several blocks north of the courthouse. Meanwhile, Fresno County officials are trying to decide on a new downtown location for a large library. The good thing about the current crop of projects is that they are large, "catalytic" projects capable of attracting further development around them. The bad thing is that most of the projects are scattered widely across the vast canvas of downtown Fresno, with little connective tissue in between. One project that holds some promise to connect the disparate, mutually unacknowledging pieces of downtown Fresno together is a proposed River Walk and Lake. It would stretch for seven or eight blocks between Highway 41 on the east and the Grizzly baseball stadium on the northwest. Like many American cities, Fresno appears enchanted by the famous Riverwalk in San Antonio, Texas, that has become so widely imitated that it verges on becoming a planning cliché. Never mind. Cities do not need to be original to be successful. Rather, they need to provide amenities — water, shade, continuous architecture, landscaping — that provide a pleasant backdrop for human activity. And while "water features" are corny in many places, water in downtown Fresno would seem almost paradisal. (Students of Islamic architecture will remember that fountains — symbolizing the junction of four rivers — represent paradise in Arab courtyards.) Although the idea remains a mere diagram at this point in time, the proposed River Walk would flow alongside Fulton Mall, which the city plans to rejuvenate while building a residential mixed-use district around the old shopping center. In theory, people who attend the baseball game could stroll or shop or grab a meal in the Fulton Mall. I hope that the city will also create pricing incentives for people to park their cars near the off ramps of Highway 41, and walk several blocks up the Fulton Mall to the ballpark. In this way, a pedestrian district comes into existence. The artificial river is the thread that can stitch together the entertainment district. Under the leadership of Executive Director Dan Fitzpatrick, the redevelopment agency is using its modest resources to advance infill projects such as River Walk, as well as new housing and retail in ethnic enclaves likes China Town and Armenian Town. The city has earmarked a none-too-generous $30 million during the next five years for various downtown projects, including $10 million for the River Walk. If those projects move forward, lonely downtown Fresno would then have what seems almost unimaginable now: a lively pedestrian, mixed-use district. Pleasure, in turns out, is not only useful, but crucial to the district's future. A touch of paradise can bring people to otherwise abandoned places and return vitality to even the most degraded downtowns.

A city resolution restricting parking on certain residential streets to residents with parking permits was categorically exempt from environmental review, the Second District Court of Appeal has ruled. The court rejected business owners' contention that the ordinance was not exempt because of the cumulative impact of parking restrictions or because of "unusual circumstances." In November 2000, the Santa Monica City Council adopted a resolution establishing Preferential Parking Zone XX (PPZ XX) for streets in a 26-acre area. The resolution allowed only vehicles with residential parking permits to park on unmetered curbs in residential areas of the zone from 7 a.m. to 2 a.m. daily. The City Council also declared the resolution exempt from the California Environmental Quality Act under CEQA Guideline § 15301(c), which provides exemptions for minor alterations. The Santa Monica Chamber of Commerce sued, claiming the resolution was not exempt. Los Angeles County Superior Court Judge David Yaffe ruled for the city, and a unanimous three-judge panel of the Second District, Division Three, upheld the decision. The appellate court first determined that the resolution qualified as an exempt "project" under Class 1 of § 15301(c). That class applies to the operation, repair or minor alteration of existing structures, facilities or topography and involving no expansion of use. The court held that the city's resolution easily met the criteria, and the court rejected the Chamber of Commerce's argument that Class 1 was not intended to apply to a regulatory scheme. " he Class 1 exemption itself specifically states that it is applicable to activities involving the operation of existing public facilities — and that is exactly what the legislation here involves," Justice Walter Croskey wrote for the court. As for the Chamber of Commerce's arguments that the exemption did not apply because of cumulative impacts or unusual circumstances, the court ruled that the Chamber did not provide any factual evidence as the basis for a "fair argument." The Chamber argued that the resolution itself, and combined with other preferential parking zones, created an adverse parking effect. But the court disagreed. "The only ‘adverse parking impact' of the legislation is that it gives residents, versus commercial users, preferential parking at some unmetered spaces," Croskey wrote. "While it can be inferred from this fact that the legislation may have an adverse financial impact on some persons or businesses, it cannot be inferred from this fact that the legislation may have any environmental impact." The chamber argued that PPZ XX was "unusually large," its hours were "unusually restrictive" and that an "unusually diverse" mix of users frequent the area. But the court found nothing unusual and said the city was simply "deciding how best to allocate its limited curbside parking in an area with competing user interests." The court also ruled that it did not matter that the city had not exempted the establishment of earlier preferential parking zones. The Case: Santa Monica Chamber of Commerce v. City of Santa Monica, No. B151761, 02 C.D.O.S. 7981, 2002 DJDAR 10002. Filed August 29, 2002. The Lawyers: For the Chamber: Christopher M. Harding, Harding, Larmore, Kutcher & Kozal, (310) 451-2968. For the city: Cara Silver, city attorney's office, (310) 458-8336.

A superior court's decision that invalidated several changes the state made to the California Environmental Quality Act Guidelines in 1998 has been upheld almost entirely by a state appellate court. The appellate panel threw out six guidelines addressing cumulative impacts, thresholds of significance, and tiering. The court upheld one guideline addressing cumulative impacts but provided additional direction for interpreting the rule. And the court said one guideline addressing "probable future projects" was invalid but could be remedied with a small wording change. The court also upheld a narrow infill development exemption that environmentalists had contested. The ruling was a victory for the three environmental groups — Communities for a Better Environment, Environmental Protection Information Center and Desert Citizens Against Pollution — that challenged the Wilson administration's amendments to the Guidelines (14 Cal. Code Reg. 15000 et seq.). On the losing end was the California Building Industry Association (CBIA), which had taken up defense of the amendments. Richard Drury, attorney for Communities for a Better Environment, called the case "the most important CEQA decision in a decade." The losing side was unwilling to go that far, but no one denied that the ruling was important in the continuing evolution of CEQA. "CEQA is here to stay, EIRs are here to stay," said James Moose, a leading CEQA attorney with Sacramento's Remy, Thomas and Moose, which was not involved in the litigation. "It's a big decision, not only because it knocks out these guidelines that were high profile, but also because it addresses these issues that have caused practitioners trouble." Among those issues were ways to address cumulative impacts. The guideline changes attempted to provide more certainty in this area. The unanimous three-judge panel of the Third District struck down most of those changes. The court stated that "one molecule" of change was not the standard for requiring an EIR, but the court also struck down a guideline that allowed a lead agency to find that a project's contribution to cumulative impacts was de minimis and, therefore, did not need further study. "How do you assess?" asked Edward Casey, who represented the building industry. "What test do you use to determine a project's contribution to a cumulative condition? I don't know. We're back to square one. This has always been the toughest part of CEQA law." But Drury praised the court's ruling. So often, he said, environmental documents ignore cumulative impacts. But the issue is important for communities that get pollution from multiple sources, he said. Drury and Moose noted that the court's opinion repeatedly endorsed the "fair argument" standard. Under this standard, if someone can provide a fair argument based on substantial evidence that a project may have a significant impact on the environment, the lead agency must prepare an EIR. "It's a very strong reaffirmation of the fair argument standard," Drury said. "I think that's what the Wilson administration was trying to go after with these guideline revisions." The roots of the case extend to 1998, the most recent time when the Resources Agency revised the CEQA Guidelines (see CP&DR, June 1999, October 1998). The state amended scores of guidelines, but the lawsuit filed by environmentalists challenged only 12 of the changes. Most people believed that they were the 12 most important changes. In mid-2001, Sacramento County Superior Court Judge Ronald Robie (since elevated to the Third District bench) overturned eight of the amendments (see CP&DR Legal Digest, June 2001). The Davis administration declined to appeal the decision, but the CBIA, which had intervened in the lawsuit, did appeal. Environmentalists appealed the decision regarding an infill exemption that Robie had upheld, and the state did defend that part of the case on appeal. In a ruling issued at the end of October, the Third District upheld nearly all of Robie's decision. Guideline §15064(h) encouraged cities and counties to adopt thresholds of significance based on regulatory standards. Under this guideline, if a project's impact was below the adopted threshold of significance, a local agency was directed to determine the impact was insignificant. But the court found this approach too inflexible. "This direction relieves the agency of a duty it would have under the fair argument approach to look at evidence beyond the regulatory standard, or in contravention of the standard, in deciding whether an EIR must be prepared," Justice Rodney Davis wrote for the court. As for cumulative impacts, the appellate court upheld Guideline § 15064(i)(3). That rule allows an agency to determine a project's incremental contribution to a cumulative effect as not significant if the project complies with an approved plan or mitigation program. However, the court said, the fair argument standard still applies, meaning an EIR could still be required. The court fully struck down § 15064(i)(4) and 15130(a)(4), which allowed a lead agency to determine an incremental contribution to cumulative impacts as "de minimis," meaning no further study was necessary. The court reaffirmed a standard set in Kings County Farm Bureau v. City of Hanford, (1990) 221 Cal.App.3d 692, and in Los Angeles Unified School Dist. v City of Los Angeles, (1997) 58 Cal.App.4th 1019 (see CP&DR Legal Digest, December 1997). The court cited Kings County: "The relevant question to be addressed in the EIR is not the relative amount of precursors emitted by the project when compared with pre-existing emissions, but whether any additional amount of the precursor emissions should be considered significant in light of the serious nature of the ozone problems in this air basin." The court repudiated San Joaquin Raptor/Wildlife Rescue Center v. County of Stanislaus, (1996) 42 Cal.App.4th 608 (see CP&DR Legal Digest, March 1996), which allows agencies to weigh incremental contributions as a ratio. " nder CEQA § 21083, under the Guidelines § 15355 definition of cumulative impacts and under the Kings County/Los Angeles Unified approach, the need for an EIR turns on the impacts of both the project under review and the relevant past, present and future projects," Justice Davis wrote. "We conclude that Guidelines § 15064(i)(4) and 15130(a)(4) are inconsistent with controlling CEQA law because they measure a proposed project's de minimis incremental impact relative to the existing cumulative impact, rather than focus on the combined effects of these impacts." The court also invalidated § 15152(f)(2) to the extent it incorporated the de minimis approach. As for defining "probable future projects," the court invalidated § 15130(b)(1)(B)2 because it contained the word "or" rather than "and." The court held that a lead agency must refer to all categories of probable future projects, including projects for which an application has been submitted, projects in a capital improvement plan or general plan, projects that are part of a later phase of a previously approved projects, and public agency projects for which money has been budgeted. The court also rejected § 15152(f)(3)(c) regarding tiering. The guideline allowed an agency to approve a project that had significant, unavoidable impacts without the agency making findings of overriding considerations if the earlier master or program EIR made such findings. The court held that the public agency must adopt overriding findings every time. Finally, the court upheld § 15332, which provides a categorical exemption for infill projects of less than five acres in urban areas if the project would not impact traffic, noise, air quality of water quality. Environmentalists had hoped the court would overturn Judge Robie, who also backed this guideline. The appellate court read the exemption as narrow and noted that qualifying projects must comply with existing general plan, zoning and other regulations. Drury said environmentalists' complaint is not with infill development per se, but with the exemption from scrutiny — an argument environmental justice advocates often present. "Even good projects are supposed to undergo environmental review," he said. "In some ways, infill development can impact more people than sprawl development." Deputy Attorney General Marian Moe said the exemption is so tight that "there are very few infill projects that it will apply to." Just about everyone foresees the Third District's decision leading to more litigation. Casey, the builders' attorney, said there will be future battles over how much discretion an agency has when setting thresholds of significance. The extent of the fair argument test also is unclear, he said. Moose predicted further litigation over cumulative impacts. "People are still scratching their heads," he said. The Case: Communities for a Better Environment v. California Resources Agency, No. C038844, 02 C.D.O.S. 10740, 2002 DJDAR 12379. Filed October 28, 2002. The Lawyers: For CBE: Richard Drury, (510) 302-0430. For the state: Marian Moe, Attorney General's office, (916) 322-5460. For the California Building Industry Association: Edward Casey, Weston, Benshoof, Rochefort, Rubalcava & MacCuish, (213) 576-1000.