A case involving Santa Cruz County's second unit ordinance has been returned to the Sixth District Court of Appeal by the state Supreme Court because the county has amended the ordinance. The county has asked the court to dismiss the case entirely because the county has eliminated the ordinance provisions in question, Deputy County Counsel Dwight Herr said. Those provisions dictate rent levels and who may occupy a second unit. Three years ago, the state Supreme Court reinstated property owner Steven Travis's lawsuit challenging Santa Cruz County's second unit permit conditions, which restricted occupancy to low-income people, senior citizens or family members, and which imposed sliding-scale rent controls. Travis tried to challenge the ordinance on which the conditions were based, but courts ruled his lawsuit was filed too late. However, the state Supreme Court ruled in Travis v. County of Santa Cruz , 33 Cal.4th 757 (2004), that he could bring an "as applied" challenge to the restrictions (see CP&DR Legal Digest , September 2004 ). The litigation returned to Santa Cruz County Superior Court, where Travis argued that the permit conditions violated state laws regarding fair housing and rent control. The Superior Court ruled against Travis, but the Sixth District ruled that the ordinance's preference for senior citizens was impermissible age discrimination. Once again, the state Supreme Court accepted the case for review. In May, however, the county adopted measures streamlining numerous planning processes, including revisions to the second unit ordinance, according to Herr. Planners had determined that the original provisions of the ordinance regarding occupancy and income levels were too difficult to enforce, so the county removed those provisions, Herr said. In July, the state Supreme Court returned the case to the appellate court in light of the revised ordinance. The case is Travis v. County of Santa Cruz , No. H029771.

Is California running out of water? Or are we just running out of political will? It is easy, as I did over the weekend, to contemplate life alongside a rushing creek in the Eastern Sierra and assume that there is enough water in that creek – and others like it throughout the Sierra – to provide for California as it hurdles toward 50 million people. So is it possible, as my old planning professor Cary Lowe warned in the Sunday L.A. Times , that the current drought may lead to "the end of growth" and "the end of the state as we know it"? The Times seems to carry the California-is-running-out-of-water story every three months or so. But it's almost always presented as a natural resources issue: there isn't enough water anymore! It's rarely presented the way it should be – as a political question. California doesn't have an infinite amount of water, but we do have a lot of water sloshing around the system. There's probably enough to handle another generation of growth. The question is who gets to use the water, and for what. But few of the players have much political motivation to frame the issue this way. To be fair, Lowe, a longtime developers' lawyer in the Inland Empire and San Diego, did frame the current drought as a consequence of global warming, something I haven't seen too many times before. And the article raised the question squarely about how California – especially Southern California – will manage future growth in population and economic activity without importing any more water from the outside. But what does this mean? Does it mean that we can't accommodate any additional people or businesses in Southern California? Or does it mean we all have to take Navy showers forever? For a lot of people – especially slow-growth activists – the answer is clearly that population should not increase anymore. The slow-growthers often use environmental arguments to back up their position – for example, the idea that each natural system has only so much "carrying capacity" and that carrying capacity cannot be exceeded. They're not interested in portraying the water issue as a question of priorities and allocation, because what they're really fighting is not water but population growth. This kind of argument – common in California since the 1970s – makes what I call the "Dowell Myers mistake" about the future. Myers , a demographer and planning professor at the University of Southern California, often says that in thinking about the future, people assume that it will be just like the present only bigger . If people live on quarter-acre lots with big lawns now, then the future will consist of more quarter-acre lots with big lawns. Rarely, Myers says, do people ever imagine that the world will not be bigger than the present but, rather, different . In the future, maybe everybody won't live on a quarter-acre lot. Lowe's article in the Sunday Times implicitly makes Myers' point by noting that imported water supplies in Southern California, currently 2.1 million acre-feet per year, have not increased in almost 20 years. Although Lowe didn't say this in his piece, during that time Southern California's population has grown by several million people. Somehow or other, the rubber band is bending. The same amount of water is being stretched to serve more people. How? Is it because we are all taking Navy showers – which, I think, slow-growthers often see as the grim and unpleasant alternative to stopping population growth? To some extent, yes. When people pay more for water – and water prices have been going up – they use less of it. More importantly, however, California has survived for the last 20 years on a finite amount of water by reallocating the water already in the system. As Lowe implies in his article, this is a much more effective and far-reaching way to achieve "conservation" than Navy showers. In my book The Reluctant Metropolis , I told the story of how cities and environmentalists began during the 1990s to gang up with each other in order to take water away from the state's farmers, who use the vast majority of it. Although I told the story largely as a tale of political power, there was an economic aspect to it as well. Farmers can use less water – freeing up most of what we need in California for the foreseeable future – but in order to do so, they must make major capital investments or change their cropping patterns. Farmers are accustomed to being a politically powerful lobby, and they don't want the government squeezing them about what they can grow. So, no less than the slow-growthers, they don't have much motivation to present the water question as an issue of priorities either. Like the rest of the United States, California lives with a system of capital infrastructure – water, transportation, electricity – that assumes energy and natural resources are cheap and we can waste as much as we want. Many farmers can move toward more efficient irrigation practices, but they are currently stuck with decades-old irrigation systems that aren't very water-efficient. The money for these needed capital investments comes from the cities, which can afford to pay far more for the water than the farmers. Farmers don't like the idea that cities can outbid them for water and essentially bribe them to conserve, but it's better than the alternative – having the Legislature get into the business of zoning cropping patterns. If you really wanted to save water, you could prohibit or restrict the growing of such water-intensive crops as rice, cotton, and alfalfa (which is not only thirsty but also low-value). But that's the farmers' equivalent of mandatory Navy showers. With water – as with so many other environmental issues in this age of global warming – our best hope lies not with stopping other people from crossing the border, or from taking Navy showers, but with making wise capital investments that will allow us to use that water more efficiently. Farmers may not want to change their decades-old practices to use less water. And slow-growthers may not want to give up the carrying capacity argument and admit that we can accommodate more people without more water. These are issues of political will. They force us to ask not whether we can use our resources more efficiently, but whether we want to. – Bill Fulton

A local agency formation commission may alter the boundaries of a proposed new city beyond those drawn by incorporation proponents, according to a state attorney general's opinion. Deputy Attorney General Taylor Carey issued the opinion at the request of Sacramento County, which has concerns about the proposed incorporation of Arden Arcade. Specifically, the incorporation proposal excludes areas outside the county's Arden Arcade community planning area between the American River and Fair Oaks Boulevard. County officials are concerned because the exclusion of that area would create a thin peninsula of territory that would remain the county's service responsibility. Arden Arcade is an unincorporated area of roughly 12 square miles and 95,000 people just east of the City of Sacramento. Proponents submitted incorporation petitions in February 2007. Their proposal excluded the mostly residential strip south of Fair Oaks Boulevard where political support for creating a new city appears to be weak, said Peter Brundage, executive officer of the Sacramento County Local Agency Formation Commission (Sacramento LAFCO). County officials insist the new city must include all of the community planning area, so they requested the attorney general's opinion. The attorney general's office concluded that while the Cortese-Knox-Hertzberg Act "does not expressly authorize a LAFCO to change the boundaries of a proposed incorporation," the act does authorize a LAFCO to approve or reject an incorporation "with or without amendment." "Naturally, a LAFCO's authority to change proposed boundaries is not without limitation. To begin with, the act requires that any amendment to a proposal be ‘consistent with written policies, procedures and guidelines adopted by the commission,'" Carey wrote, citing Government Code § 56375 subdivision (l). "Additionally, a LAFCO may not amend a proposal in a way that changes the fundamental nature of the proposal. "Within these limits, there may be any number of reasons why a LAFCO would consider changing the boundaries of a proposed incorporation area. … " LAFCO may change the boundaries of a proposal to prevent ‘an overlap of service responsibilities and inefficiencies in service provision' or to ‘bring about a unified and accountable government.' Indeed, these purposes lie at the heart of the policy that underlies the entire local government reorganization scheme," Taylor continued, citing Curtin's California Land Use and Planning Law and Fallbrook Sanitary Dist. v. San Diego Local Agency Formation Com. , 208 CalApp.3d 753, 765 (1989). Three new cities have been established in Sacramento County since 1997 — Citrus Heights, Elk Grove and Rancho Cordova. For Citrus Heights, Sacramento LAFCO did some "minor tweaking" to shrink the boundaries, Brundage said. The commission excluded larger chunks from the proposed Elk Grove and Rancho Cordova city limits. With Arden Arcade, the commission might expand the boundaries. However, Brundage emphasized, the commission placed the incorporation proceedings are on hold in June while cityhood proponents raise money to pay for an environmental impact report and fiscal analysis. The process could resume next year with the goal of placing incorporation on the ballot in November 2010, he said. The attorney general's opinion is No. 07-206 and was published on June 27, 2008.

An unusual Coastal Commission mitigation fee to offset the impact of a private seawall has been upheld by the Sixth District Court of Appeal, which rejected arguments that the fee was unconstitutional, was prohibited by the Coastal Act and was the result of post hoc rationalization. The Commission determined construction of the seawall in Monterey would cause the erosion of 1 acre of beach over 50 years, or 870 square feet annually. The Commission calculated the recreational value of the lost beach based on the number of annual visitors and the amount they spend per visit to come up with an impact figure of $5.3 million. Using a 3% annual discount rate, the Commission imposed an impact fee of $2.15 million to be paid in five annual installments of $430,000. The court ruled that the fee passed both the Nollan nexus test and the Dolan rough proportionality test. Property rights advocates have decried the ruling, and the property owners involved asked the state Supreme Court to accept the case in July. The Ocean Harbor House Homeowners Association applied to the City of Monterey for a permit to construct a 585-foot-long seawall because storms, tides and shoreline erosion had been threatening seaward condos in the complex since the 1980s. The city prepared an environmental impact report, which concluded construction of the seawall would cause the beach to erode on either side, breaking the continuity of a two-mile-long beach. The city required the association to provide alternative lateral access through a parking lot, concluded the impact on recreation would be insignificant, and approved the permit. The homeowners association then headed to the Coastal Commission. The Commission staff prepared a report recommending a permit for the seawall and imposition of an in-lieu fee to buy an acre of beach property along southern Monterey Bay for public recreation. The staff proposed three methods of valuing the acre of beach: The cost of replacing an acre of sand ($1 million to $1.2 million), the cost of buying beachfront property ($1 million), and the "recreational value" method ($5.3 million). Although the staff recommended using the land-replacement method and imposing additional requirements, Commission members said the fee should be based on the value of the lost recreational benefits. Over the association's objections, the Commission approved the permit, the $2.15 million fee and other conditions in January 2005. The homeowners association sued, and Monterey County Superior Court Judge Robert O'Farrell ruled for the Commission. On appeal, a unanimous three-judge panel of the Sixth District upheld the lower court. The association argued that the exaction lacked the logical link, or nexus, with the impact of building the proposed seawall. A nexus is required under Nollan v. California Coastal Commission , (1987) 483 U.S. 825. The association contended the in-lieu fee was not tailored to the direct, on-site impacts of the proposed project, as buying beach property elsewhere would not mitigate loss of beach at the condominium complex. The association said the fee was similar to the easement that the U.S. Supreme Court rejected in Nollan because it was not related to the proposed house construction. The appellate court disagreed because the association's "view of the impacts of the seawall fails to recognize the loss of recreational use as a distinct impact. Nollan did not involve such an impact." " fee to purchase beach for public recreation has a logical tendency to mitigate loss of recreational use on the beach at the complex," Presiding Justice Conrad Rushing wrote for the court. " Nollan does not suggest that where a project has an unavoidable on-site impact that cannot be directly mitigated, the Commission may not require equivalent off-site mitigation." The association also argued the fee violated the rough proportionality requirement established in Dolan v. City of Tigard , (1994) 512 U.S. 474. Here is where the method of determining the fee came into question. The Commission based the fee in part on studies that found beach-goers in Huntington Beach spend an average of $13 per person per visit. The Commission used that figure, state park data showing 968,000 annual visitors to Monterey Bay beaches and 60.6 acres of beaches to determine the fee. The association argued this methodology was inappropriate because it was based on expenditures with local businesses and the tourism industry, and was not based on the loss of local sand. Thus, they argued, the fee was not roughly proportional to the seawall's impact. "Again," Rushing wrote in rejecting the argument, "homeowners fail to consider the loss of recreational use as a direct impact of the seawall and thus a proper focus of separate mitigation. … Although it would have been incorrect to measure that loss by the economic impact of an acre of beach, the Commission's analysis properly focused on the economic recreational value and relied on pertinent data concerning consumer surplus." The association also attacked the use of a study from Huntington Beach because of Monterey's differences in beach facilities and climate. But the court found that the study was appropriate and the Commission had evidence supporting the study's use. On the question of Commission authority for imposing the fee at all, the homeowners association argued that a portion of the Coastal Act (specifically, Public Resources Code § 30235) gave the property owners the right to build a seawall and permitted the Commission to impose only mitigations regarding the immediate impact to local sand supply. The court, however, said the Coastal Act's overall provisions for preserving natural resources and maximizing public access still applied. " he Commission has broad discretion to adopt measures designed to mitigate all significant impacts that the construction of a seawall may have," Rushing wrote. Finally, the association argued the Commission engaged in post hoc rationalization by first choosing the fee amount, and then adopting a valuation method to support that amount. The court rejected the argument, noting that the very first Commission staff report contained three potential ways to determine the fee, including the recreation value method the Commission ultimately selected. The Case: Ocean Harbor House Homeowners Association v. California Coastal Commission , No. H031129, 08 C.D.O.S. 6326, 2008 DJDAR 7603. Filed May 23, 2008. The Lawyers: For the homeowners association: Meriem Hubbard, Pacific Legal Foundation, (916) 419-7111. For the Commission: Christiana Tiedemann, attorney general's office, (510) 622-2100.

An irrigation district that provides wholesale electricity may not begin providing retail electric service without approval of the Local Agency Formation Commission, the Third District Court of Appeal has ruled. In a related decision, the Third District also ruled that the irrigation district may not depose two members and the executive officer of the Local Agency Formation Commission (LAFCO) for the district's lawsuit regarding denial of the retail electric service application. Both decisions bolster the authority and integrity of LAFCOs. In 2005, the South San Joaquin Irrigation District sought approval from the San Joaquin Local Agency Formation Commission (SJ LAFCO) to provide retail electric service. The district already provided irrigation water service and wholesale electric generation and electricity marketing services. The district sells electricity from three hydroelectric dams to Pacific Gas & Electric (PG&E). The district proposed to acquire PG&E's distribution facilities through a negotiated purchase or eminent domain, and to sell the electricity directly to users. Not surprisingly, PG&E opposed the application and raised the question of whether this would be an appropriate use of eminent domain. Staff of the SJ LAFCO recommended approval of the application, but the LAFCO board voted 4-1 to deny it in June 2006. Although they officially rejected the proposal because the district "did not demonstrate its administrative, technical and financial capabilities to provide retail service to the satisfaction of the Commission," at least two commissioners focused on the issue of eminent domain. They did so despite a warning from the Commission's attorney that potential use of eminent domain could not be a factor in SJ LAFCO's decision. The irrigation district then sued SJ LAFCO, arguing both that the Commission's approval was unnecessary, and that retail electricity would not be a new service. The district also sought to depose Commissioners Jack Sieglock and Gary Giovanetti and Executive Officer Bruce Baracco (none of whom is still associated with the Commission). PG&E intervened in the litigation. San Joaquin County Superior Court Judge Elizabeth Humphreys ruled against the district, concluding that SJ LAFCO's approval was necessary for the special district to exercise a latent power such as providing retail electric service. While Humphreys based her decision on the administrative record, she also ruled that the district could depose Sieglock, Giovanetti and Baracco. The judge limited the inquiry to "all unprivileged information that the deponents had prior to June 15, 2006, including information obtained from third parties (including but not limited to PG&E), and what additional information the Commissioner deponents needed to recommend adoption of the staff recommendation to approve the project." The Commission, which had fought the deposition request, appealed the ruling on the depositions, while the district appealed the ruling on the application. The issue of LAFCO approval of the application centered on interpretation of legislation passed in 2001 — AB 948 (Kelly), which was essentially a cleanup of the 2000 overhaul of the LAFCO law known as the Cortese-Knox-Hertzberg Act (see CP&DR , September 2000 ). Among other things, AB 948 added §§ 56824.10 through 56824.14 to the Government Code. Those sections concern LAFCO proceedings "for the exercise of new or different functions or classes of services by special districts." The district argued that it has long had the right under the Water Code to provide retail electric services and, therefore, LAFCO approval was unnecessary. In a different line of argument, the district contended that the provisions in AB 948 were permissive, not mandatory. A three-judge panel of the Third District disagreed. It determined that retail electric service would be an expansion of the district's services. And the court ruled that interpreting the AB 948 provisions as permissive "would be nonsensical. There would be no point in establishing a detailed, timely and costly procedure for LAFCO approval if a disappointed applicant could simply disregard the decision of LAFCO and proceed with its plan to provide a new or different service." On the issue of depositions, the court ruled there was no reason to employ an exception to the rule that such suits are decided by reviewing the administrative record. "Limiting review to the administrative record is appropriate due to the scope of review," Justice Fred Morrison wrote for the court. "An action or proceeding to attack a determination of SJ LAFCO ‘extends only to whether there was fraud or a prejudicial abuse of discretion. Prejudicial abuse of discretion is established if the court finds the determination or decision is not supported by substantial evidence in light of the whole record,'" Morrison continued, citing Government Code § 56107, subdivision (c). The irrigation district argued depositions were necessary because SJ LAFCO appeared to base its decision on information not in the administrative record. But if that were true, the record would not support the decision and the court could overturn LAFCO, Morrison noted. Here, the district appeared to want to learn what additional information would change the commissioners' minds. "While the district argues there is some secret category of information it did not know was needed," Morrison wrote, "we read the commissioners' remarks as simply stating they were not persuaded by the district's proposal. The denial was on the merits. If the district had a stronger case to make, reasonable diligence required the district to make that case at the hearing." The Cases: South San Joaquin Irrigation District v. Superior Court , No. C056661, 2008 DJDAR 5703; San Joaquin Local Agency Formation Commission v. Superior Court , No. C056463, 2008 DJDAR 5708. Both filed April 22, 2008. The Lawyers: For the district: Martin Fineman, Davis Wright Tremaine, (415) 276-6500. For SJ LAFCO: Daniel Schroeder, Neumiller & Beardslee, (209) 948-8200. For Pacific Gas & Electric: Michael M. Berger, Manatt, Phelps & Phillips, (310) 312-4000.

A bomb detonated in my front yard at 3:30 a.m. on June 21. Actually, it was an explosive from the sky in the form of lightning, and it was the start of an electrical storm that continued for 11 hours. Nearly three weeks later, firefighters are still battling blazes sparked by that lightning in the mountains and canyons around me. My house has remained safe, but residents of hundreds of other houses in the area have evacuated. One question that comes to mind during a crisis like this is whether these houses — including mine — should even exist. If legislation proposed in Sacramento had been approved 40 years ago, the houses probably would not be here. I live in a high fire hazard zone in Shasta County. My lot and three others were created with a four-way parcel split during the 1970s. I'm guessing that the provision of fire services was just assumed by everybody at the time. We have a very small volunteer fire department, but it's the California Department of Forestry and Fire Protection (CDF or Cal Fire) that is responsible when blazes erupt. The typical practice in counties across the state has been to leave fire protection of the countryside up to CDF . But nowadays, CDF's annual firefighting budget is approaching $1 billion. When you're in the vicinity of a large wildland fire, you understand why: You see the thousands of firefighters, the armadas of heavy equipment and the array of aircraft that go into action against a wildfire. Those of us who live in this kind of state responsibility area (SRA) are thankful that state taxpayers subsidize our fire protection. But the free ride may be over for us soon. And we might not get many more neighbors. It appears possible that the state budget deal could include some sort of new funding for CDF, either in the form of a surcharge on insurance premiums or a direct assessment on property owners. A homeowner like me might pay something in the neighborhood of $50 a year. Several pieces of legislation seek to limit development in SRAs. Assembly Bill 2447 (Jones) would prohibit a county from approving a subdivision or parcel map in an SRA or a very high fire hazard severity zone unless the responsible fire agency — it will almost always be CDF — verifies in writing that adequate structural fire protection will be available, and the Board of Supervisors makes findings regarding fire-safe structures, road access and emergency water systems. Who supports AB 2447? Unions of firefighters — the men and women who are working in 110-degree heat and brutally smoky conditions to protect houses like mine. Who is against AB 2447? County governments, specifically my county's Board of Supervisors, that approve the houses these firefighters are trying to preserve. The bill has passed the Assembly. Senate Bill 1500 (Kehoe) would require areas with an average residential density exceeding three dwellings per acre to be removed from an SRA, meaning a local agency would have to provide fire protection. This policy would be an enormous change that would discourage development on the exurban fringe and in resort areas — places with medium density housing that have long relied on CDF. A different Kehoe bill (SB 1764) would require a local agency to receive certification from the state fire marshal before the state would pick up more than 75% of disaster-related costs. Opponents, including San Diego County, argue the bill's language would prevent communities from relying on volunteer fire departments. I should note that San Diego County is only now beginning to take steps to implement proposals stemming from the tragic 2003 Southern California firestorms for creation of a countywide fire department and new fire taxes. The point of all the legislation is to change the business-as-usual approach and force counties to take more responsibility for fire safety. The choice is to enforce fire-safe development and building practices, and establish and fund local fire departments, or to prohibit development in fire-prone rural areas. As I look out my window at a procession of helicopters flying through skies full of smoke and ash, I can't argue against those ideas. – Paul Shigley

The Calaveras County Community Development Agency is in the political cross-hairs after the county grand jury issued a scathing report that questions the agency's hiring practices, the director's management style and the use of consultants. Sound familiar? Not the details, but the tone. Your local newspaper has probably struck similar notes recently. That's because it is the season for grand juries to release their annual reports on local government. Every county has a civil grand jury that investigates local government policies and practices. Grand jury terms follow the July-through-June fiscal year. Jurors are selected from a pool of volunteers by a Superior Court judge, who also oversees the panel's investigations. Retirees with time on their hands and younger people seeking to build a base on which they may run for office are heavily represented on grand juries. OK, that last comment was a cheap shot. I should warn you that it might not be my last. When I was in the newspaper business, we eagerly anticipated the release of the grand jury report. It typically provided fodder on government incompetence, corruption and stupidity with which we could fill the news pages for several days. When agencies targeted by the grand jury issued formal written responses a month or two later, we could rehash it all. But it didn't take too many rounds of this drill before I began questioning grand juries themselves. Some of them were well-meaning, while others appeared to have less-than-honorable motives. Overall, they struck me as groups of self-appointed experts (those of us who have worked in newsrooms can identify with groups of self-appointed experts) who issued sweeping condemnations and recommended practices that had already been dismissed for good reason. The terms "half-baked" and "witch hunt" came to mind frequently. My suspicion only grew when I tried to ask questions of various grand jury foremen. Grand jury reports can be vague. Who, I wanted to know, did the grand jury interview? What project specifically is in question? Which jobs are filled with political cronies? Which consulting contract is a waste of money? The county administrator/city manager/executive director says the grand jury never asked him about this. Why not? Invariably, the grand jury foreman would say state law prevented him or her from talking publicly. The report spoke for itself, he or she would say. And yet I would read grand jury reports from other counties that were far more specific. They would say exactly who was interviewed and which background documents were studied. Some of those reports named names. Government officials' often respond to grand jury reports with something along the lines of, "You morons are too ignorant to understand how government works." OK, not in so many words, but the point gets made, and the response isn't any more helpful than the grand jury report itself. I should be careful here. I have, in fact, read grand jury reports that were detailed and thoughtful, and which helped improve government effectiveness. That's the way the process should work. So which is the Calaveras County grand jury report on the planning and building agency — thoughtful and useful, or half-baked and harmful? It's hard for me to tell. The two sections concerning planning are very short and provides no context. Recommendations such as "The Director enroll in an accredited educational institution and obtain a Certified Planner Certificate" don't give me confidence. What in the world is a Certified Planner Certificate? I do know that land use politics in Calaveras County are difficult. The county's decision to hire Stephanie Moreno two years ago to serve as community development director was out of the ordinary. Moreno is a former Amador County supervisor who had been working as an analyst in the Monterey County Division of Child Protective Services before she took the Calaveras County planning job. ------ News update ------ Stephanie Moreno has resigned as Calaveras County community development director as of August 1. Read and listen to her interview with the Stockton Record here . -------------------------- It became clear immediately that she didn't accept business as usual. She fired the longtime building official, who was well-loved by contractors. She hired the respected Mintier & Associates to help with a troubled general plan update. She rubbed people the wrong way. The grand jury makes a number of allegations. The county administrator, who has been on the job less than a year, is denying the charges. The Board of Supervisors appears divided 3-2. And once again we have a grand jury report that provides far more heat than light. - Paul Shigley

Joel Kotkin is at it again. In yesterday's Los Angeles Times Sunday opinion section , the enfant terrible of L.A. urbanism dissed the "suburbs as slums" thesis of Brookings' Christopher Leinberger. But in once again coming to the defense of "suburbs", he has revealed that he can't tell the difference between Glendale and Palmdale. For the last year or so, Leinberger has been trumpeting the idea that "Walkable Urban Places" – he sometimes calls them WUPs – are likely to have a competitive advantage over suburban driving neighborhoods in the decades ahead. As Leinberger himself admits, his methodology is a bit ragged . Still, he has a point. The job-rich city neighborhoods and inner suburbs that childless professionals favor, especially those with access to rail transit, are on the rise – and they are doing well in the current real estate downturn. More recently, Leinberger suggested in the Atlantic Monthly that not only will the WUPs have a competitive advantage going forward, but that auto-oriented suburbs will become the new slums – especially starter-home suburbs like Elk Grove in Sacramento and the Victor Valley in Southern California, which have been hammered hard by the subprime mortgage crisis. This was apparently too much for Kotin, who responded in Sunday's Times with a screed that once again came to the defense of the "suburbs" against the "city". In a similar fashion to last summer's debacle – when he decried Pasadena-sized densities as "Manhattanization" – Kotkin has now confused Glendale with Palmdale. He argued that Leinberger is wrong because people and jobs are not flowing to Downtown Los Angeles in huge numbers. He claimed that Leinberger and his sympathizers base their research mostly on anecdotes, rather than facts. And he concluded that "rather than cramming more people and families into cities," high energy prices and similar trends "may instead foster a more dispersed, diversified archipelago of self-sufficient communities." As examples he lists Burbank, Ontario, and West L.A. – all job-rich "suburbs" where commutes are shorter than they are in inner-city L.A. Take that, Leinberger! Except that Leinberger, like practically every other advocate of urbanism in America, agrees with him. In a Brookings paper last year – admittedly qualitative in its approach – Leinberger took a stab at identifying WUPs in the nation's 30 largest metropolitan areas. He came up with 15 existing or emerging WUPs in the Los Angeles area, including … Burbank, Glendale, Century City, Westwood, Culver City, and Beverly Hills. In other words, he included all the "suburbs" that Kotkin is always defending against the "city". The inescapable conclusion is that Kotkin is about 30 years out of date. His mind lives in a ring of older suburbs that circle downtown L.A. – Burbank, the San Gabriel Valley, the Westside, Irvine, all built between the 1920s and the 1960s as residential suburbs. Kotkin always casts the "urban v. suburban" battle as a battle between Downtown Los Angeles and these "suburbs". But Burbank and Westwood are no more suburbs than is Downtown. And the Americana at Brand, Rick Caruso's new mixed-use project in downtown Glendale, may seem manufactured – but it's definitely not suburban. Why can't Kotkin see that these are emerging as urban places in their own right, with diversity and liveliness and jobs and amenities and all the things that are driving the yuppies to the WUPs, as Leinberger keeps saying? And has Kotkin ever even been to Palmdale or Victorville or Hemet? These are the emerging slum suburbs created by the subprime fiasco. Over the last year or so, Kotkin the great expert on cities has been strangely silent about them. Maybe it's about time he visited some of these places. It's really not that hard, especially for a fan of auto-oriented suburbs. All Kotkin has to do to find Palmdale is get on  the Hollywood Freeway near his house and head north – up the 170 freeway, then I-5, and the 14 freeway – for about 60 miles. Maybe when he returns to Valley Village, he'll feel safely ensconced in suburban living because he has a back yard with trees. But at least he will have spent a little time out in a real suburb. -- Bill Fulton

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

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

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

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