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It’s a pretty well-established rule in California land-use law that the zoning tail can’t wag the general plan dog. But one of the most vexing questions has been what happens when the voters create an inconsistency between the dog and its tail.

Development agreements cannot be adopted by initiative, an appellate court has ruled.

The Strategic Growth Council has opened Round II of the  Transformative Climate Communities  Program, which includes grants for planning and implementation. Funded through California’s Cap-and-Trade Program, TCC empowers the communities most impacted by pollution to choose their own goals, strategies, and projects to enact transformational change – all with data-driven milestones and measurable outcomes. The  Final Round II Guidelines  and the  Notice of Funding Availability  can be found on  SGC's website . Staff will be holding a TCC Implementation Grants Application Webinar on Tuesday,August 28, 11:30 am-12:30 pm ( Register ) and a TCC Planning Grants Application Webinar on Wednesday, August 29, 10:00-11:00 am ( Register ). Both Implementation and Planning Grant Applications must be submitted by Oct. 30. Prop. 13 'Split Roll' May Appear on 2020 Ballot  Supporters of the bid to alter Proposition 13 increase taxes on commercial land announced they’ve collected more than 860,000 signatures to force a vote on the issue in the 2020 election. The initiative would boost property tax revenues from commercial and industrial properties by assessing them at their current market value. Property tax protections would remain unchanged for residential properties. According to an estimate from the Legislative Analyst’s Office, the changes could net $6 billion to $10 billion annually in new property tax revenue statewide. Under this “ split roll ” businesses would have their properties reassessed to market values every three years or less. Proponents of the split roll want the revenue which will go to local governments and schools. (See prior CP&DR commentary .) Movement for East Bay BART Extension Gains Traction A newly-formed transit authority, Tri-Valley-San Joaquin Valley Regional Rail Authority , is working on designing and building a rail link between the Dublin/Pleasanton BART station and Lathrop in the Central Valley. The authority’s governing board released its vision for the Valley Link between Central Valley to the East Bay/San Francisco. It includes a 10-station commuter line, with BART-like service in the Tri-Valley that could start carrying passengers in five to seven years. According to the Bay Area Council Economic Institute, more than half of Tracy residents leave the city every day for work with one-third commuting more than an hour in each direction. The project is estimated to cost $1.8 billion and would save with open air, track-level stations, similar to Amtrak stops. UCLA Releases Data on Residential Displacement in L.A. County The Center for Neighborhood Knowledge at UCLA Luskin released an online inventory and map of anti-displacement policies in L.A. County, and a map of neighborhood change and gentrification in Southern California. The anti-displacement policies map utilizes data collected between February and May of 2018 and reflects the groups first step in highlighting and better understanding the policies that can promote affordability and mitigate displacement of vulnerable populations. The findings thus far have been that despite a wide range of anti-displacement policies and strategies in the county, the coverage is fragmented and implementation is not equitably distributed. The urban displacement map reflects data first provided in 2016 and focuses on understanding neighborhood transformations. A key finding is that the numbers of gentrified neighborhoods rose 16 percent in the county between 1990 and 2015. Quick Hits & Updates The Sierra Club sent a letter to the Stockton Planning Commission expressing concern that a proposal for housing on 17,500 acres of agricultural land has been included in the General Plan update without any public discussion. The environmental group said that in 2016 city leaders agreed that the public wanted to redevelop vacant or underutilized parcels in existing urban areas in an effort to preserve much of the area beyond the city limits for open space and agricultural uses. The draft General Plan document suddenly states the “study area” has been rebranded an Economic and Education Enterprise land that allows for housing to support job generation. The State Water Commission awarded $816 million in voter-approved bond money to build Sites Reservoir, the largest water storage project built in the state since the 1970s. Sites’ project managers weren’t please with the amount of funding for their $5.2 billion project. The amount awarded represents about half of what Sites’ backers were asking for. The project has been under discussion for decades. It would flood a 14-mile long valley west of Williams along the Glenn-Colusa county line with water piped 14 miles from the Sacramento River. If it is built, it will become the seventh largest reservoir in the state. According to a report from the Atlas Hospitality Group, there are currently 182 hotels accounting for more than 25,000 rooms under construction throughout the state. This is a 40 percent increase over the first half of 2017. Of the 2,400 hotel rooms currently being built in Orange County, nearly 1,800 are in the City of Anaheim. San Diego County has seen hotel room construction increase 63 percent compared with the previous year. Superior Court Judge Amy D. Hogue has rejected a bid by the nonprofit AIDS Healthcare Foundation to block construction of two residential towers next to the group’s Hollywood headquarters. In the 18-page ruling, Judge Hogue said city officials followed the state’s environmental law when they approved the two towers. The project is expected to reach 30 stories and have 731 apartments. Lime and Bird , two scooter-sharing companies, abruptly deactivated their devices in Santa Monica for a day and supporters swarmed City Hall in an act of protest. The move comes after City Council committee failed to recommend the companies for Santa Monica’s electric scooter pilot program, and instead endorsed Lyft and Uber-owned Jump. As part of the Day Without A Scooter campaign, Bird and Lime asked riders to protest the committee recommendation outside City Hall, just before a scheduled council meeting. A coalition of activists filed a lawsuit in the hopes of intervening between an agreement made between the Coastal Commission, California Coastal Conservancy, and he Hollister Ranch Owners Association granting access to a section of shoreline in Santa Barbara County by select guided tours or those who can boat or paddle in. The deal received preliminary approval in May, but Judge Colleen Sterne said she was concerned the public was not provided sufficient knowledge of the settlement. Californians were invited to comment and more than 1,500 people emailed the Coastal Commission lambasting the deal.  The Coastal Commission announced during a public meeting that the agency plans to ask the State Lands Commission to “explore all potential options” to obtain genuine public access by land to Hollister Ranch , one of the state’s least tarnished stretches of coastline. The State Lands Commission has the authority to acquire private property through eminent domain, but has never used this authority before. Other options would include land exchanges or negotiating new boundary lines. Backers of a ballot initiative that would require public votes before most large housing developments could be built in unincorporated parts of San Diego County turned in petitions containing more than 107,000 signatures - but it may be too late for the measure to appear on the November ballot. The Safeguard Our San Diego Countryside petitions must be verified and placed on the ballot by a vote of the county Board of Supervisors by August 10. The Registrar of Voters has said repeatedly it is highly unlikely that it can have the signatures verified by that date. The City of Costa Mesa and a local developer have agreed to pay millions of dollars to settle a pair of lawsuits filed by displaced tenants and affordable housing advocates. Plaintiffs challenges the city’s efforts to force the sale or closure of residential motels, a process which left dozens of families homeless. The developer also agreed to set aside additional affordable housing units in a complex under construction and the city agreed to put affordable housing units in a future project. Individual named plaintiffs were compensated $250,000 and $650,000 will go into a fund for distribution to those displaced from motels. The South San Francisco Planning Commission recommended implementing commercial linkage fees to generate funds for the city’s affordable housing fund. City officials are still uncertain about the preferred rates. City staff recommends charging builders $5 per square foot of new hotel space, $2.50 for restaurant or retail square footage, and $15 for the same amount of office, medical or R&D space. However, some commissioners want to charge higher rates to generate more funds for affordable housing, while others say rates should be limited in recognition of the burden already placed on builders through other established fees. After a 13-hour public meeting, the Coastal Commission approved Redondo Beach 's harbor-rezoning Measure C, closing a six-year-long chapter in the waterfront saga. The Coastal Commission decisively chose to accept Measure C as it was passed by the voters in march 2017, disregarding recommendations by Coastal Commission staff to amend the measure’s language.

It’s often argued under the California Environmental Quality Act that personal opinion does not necessarily equal substantial evidence. For example, in a recent appellate case from the Town of Joshua Tree , a court ruled that the comments of a local business owner did not add up to expert opinion about the impact of a Dollar General store on the decay of a small downtown area. So it’s interesting that the First District Court of Appeal, in a recent case from Fremont, concluded that comments from both the public and from historic preservation commissioners can add up to substantial evidence if they are – with apologies to the president – “fact-based”. The case involved a proposal by developer Valley Oaks to build an 85-unit townhome project on 5.5-acre vacant parcel along the Niles corridor in Fremont. (The project’s initial study can be found here .) Although the city’s Historic Architecture Review Board, or HARB, recommended raised significant concerns about the project in the context of Fremont’s historic overlay district for the Niles corridor, and the project generated significant public opposition, the project was approved – and a mitigated negative declaration certified – by the Fremont City Council in 2015. A group called Project Niles subsequently sued and won a favorable trial court ruling, which concluded that there was substantial evidence that a fair argument could be made regarding a potentially significant impact on both traffic and aesthetics, which would trigger an EIR. The developer Valley Oaks, though a real party in interest, appealed the ruling. Interestingly, Project Niles sought to dismiss the city appeal in May of 2018 because the city subsequently prepared a draft EIR. But the appellate court rejected that argument, saying that Valley Oaks’ original development proposal was still in play and a voluntary attempt to abide by the trial court ruling did not mean the 2015 approval was moot. The appellate court affirmed the trial judge’s ruling, relying heavily on the notion that both public and HARB comments on the issues at hand were not merely opinions but in fact were “fact-based”. On the aesthetics issue, significantly, the court ruled that “a project’s visual impact on a surrounding officially-designated historical district is appropriate aesthetic impact review under CEQA. We do not believe this view undermines the separate scheme for CEQA review of environmental impacts on historical resources.” Rhe court acknowledged that aesthetic judgments are “inherently subjective.” However, the court was not persuaded by Valley Oaks’ argument that the project was inherently more aesthetically pleasing than a vacant lot nor by the argument that the project’s design, which reflected the sites industrial past, was appropriate. “Here, the comments about incompatibility were not solely based on vague notions of beauty or personal preference, but were grounded in inconsistencies with the prevailing building heights and architectural styles of the Niles HOD (historic overlay district) neighborhood and commercial core. “ On traffic, the court quoted a number of residents who testified to the potential danger that would be created by the project’s street pattern. For example, one resident said: “I travel down Niles in the direction of the every day. Many mornings traffic is already backed up past the border of the nearly to downtown. . . . waiting 5 minutes to get just from the underpass to Mission Boulevard most mornings.” As with the aesthetics issues, the court concluded that these are not mere opinions but “fact-based comments” that add up to substantial evidence that a fair argument can be made for a potential significant impact, thus triggering an EIR. Subsequent to the court’s ruling, local press reports indicated that the city would move forward with the draft EIR, while Project Niles advocates would pressure the city to re-think the entire project. The Case : Project Niles v. City of Fremont , A151645 (July 16, 2018) The Lawyers: For Project Niles: Susan Brandt-Hawley, Brandt-Hawley Law Group, susanbh@preservationlawyers.com . For City of Fremont: No appearance in appellate court. For Valley Oaks et al (real parties in interest): Arthur J. Friedman, Sheppard Mullin, afriedman@sheppardmullin.com , and David H. Blackwell, Allen Matkins, dblackwell@allenmatkins.com

U.S. Bureau of Land Management under the Trump administration have taken the first step of opening 1.6 million acres of California public land to fracking and conventional oil drilling, triggering alarm bells among environmentalist. US BLM said it’s considering new oil and natural gas leases on BLM-managed lands in Fresno, San Luis Obispo, and six other San Joaquin Valley and Central Coast counties. If BLM goes ahead with the plan, it would mark the first time since 2013 that the agency has issued new leases for oil or gas exploration in the State. The notice was released by BLM last week, which allows for 30 days of public comment, specifically “public input on issues and planning criteria related to hydraulic fracturing.” The Center of Biological Diversity has vowed to fight the move. San Francisco’s Transbay Transit Center Finally Opens On Sunday August 12 bus service began at the new $2.16 billion Transbay Transit Center, which stretches nearly three blocks just south of Mission Street. Above the station is a 5.4-acre park that fills the roof above the concourse with eight distinct gardens and a long, oval path. The park includes a picnic meadow, playground, and two-story restaurant with a terrace 80 feet in the air. While the transit center is now complete, there are still questions on whether commuter trains will ever make it. The earliest date for train service is 2029 and the budget for the rail phase alone is at least $4 billion, where $4.2 billion was the original budget for the entire project. The transit center is now named Salesforce Transit Center with Salesforce Park on top. In an effort to keep the rooftop garden free of drugs users and troublemakers, visitors in the first week can expect craft booths and exercise classes. Games, free music, Toddler Tuesdays and a lunchtime writing workshop will be offered Wednesday. The transit center will have multiple layers of security and be open from 5 a.m. to 1 a.m. daily. The park will close at 9 p.m. during the summer and fall and 8 p.m. the rest of the year. Karuk Tribe’s Bid to Restore Reservation in Peril Research done by a Professor Stephen Dow Beckham, a history professor at Lewis & Clark College in Oregon, found no Native American ever lived on the 441-acre Ruffey Rancheria outside Etna. This is a major blow for the move to restore federal tribal recognition to a long defunct Siskiyou County Indian Rancheria. Josh Saxon, executive director of the Karuk Tribe, hired the professor to investigate the tribe’s legitimacy. Saxon says, “This is an attempt to resurrect a tribe where there was no tribe.” However the chairman of Ruffey Rancheria, Tajh Gomes, says Beckham’s report is factually wrong and that he overlooked a list of tribe members who were residents “on or near the original reservation lands or on other lands purchased or leased for the Ruffey Rancheria members”. Congress terminated the Rancheria along with 40 others as part of the California Indian Rancheria Act of 1958. Ruffey Rancheria is one of the last few remaining terminated California Indian Rancherias that has not yet been restored to federally recognized status. HDC Steps Up Efforts to Review Compliance with Housing Law The Housing and Community Development (HCD) Department has announced its process to hold cities and counties accountable to provide housing opportunities for more Californians. Assembly Bill (72) granted enforcement powers to clarify HCD’s authority to review a city or county’s compliance with state housing laws and revoke their finding of housing element compliance. HCD can also refer issues of noncompliance with this and other housing laws – such as the Housing Accountability Act and State Density Bonus Law- to the State Office of the Attorney General. Quick Hits & Updates Tim Draper, author of the initiative to split California into three states, announced he’s dropping his proposal after the state Supreme Court’s decision to remove it from the November ballot. The justices invited Draper to present arguments about why his measure meets constitutional standards. Draper wrote in the letter to the court, “I did not qualify Proposition 9 for just any future ballot. I wanted it to be on the ballot this year. The political environment for radical change is right now – such change is sweeping the globe.” (See prior CP&DR commentary .) The City of Palo Alto is considering abolishing a policy that currently limits new non-residential development in downtown. The proposal to scrap the cap was originally approved by City Council, 5-4, in January 2017. The five councilmembers in favor argues the policy is no longer necessary given the other restrictions on commercial growth already in place. Palo Alto has a citywide limit of 1.7 million new square-feet of office and R&D growth. A citizen initiative to reduce the limit to 850,000 square-feet will be on the November ballot. While the council removed the downtown cap from the updated Comprehensive Plan, the city must now actually implement the policy change by removing the downtown cap from the zoning code. Contractors building a 31-mile section of the high-speed rail project in the Central Valley have complained that the Union Pacific Railroad is causing delays and significant cost increase. The allegation may lead to a delay claim by the contractor against the state. The friction involves the Union Pacific’s “right of way”, the 100-foot-wide passage granted under President Abraham Lincoln in the 1860s. The HSR is trying to build alongside Union Pacific’s right-of-way in Fresno and Madera. San Francisco Board of Supervisors have pushed back on Ford GoBike’s expansion in various neighborhoods throughout the City saying not enough notice has been offered to neighbors about new installations. In many cases throughout the city, the rental bike docks are placed in parking spaces meant for cars. Gov. Jerry Brown appointed Pasadena redevelopment consultant Cecilia Estolano to the UC Board of Regents. Estolano was co-founder and CEO of Estolano LeSar Advisors, and from 2006 to 2009 chief executive of the Los Angeles Community Redevelopment Agency. She attended UC Berkeley for her law degree and UCLA for a Master of Arts in urban planning. Santa Cruz County Board of Supervisors unanimously approved an affordable housing bond and half-cent sales tax for the November ballot. The $140 million affordable housing bond would fund the development of more than 1,000 new affordable housing units in Santa Cruz County, loans for first-time homebuyers and homeless services programs. The half-cent sales tax would raise an estimated $5.75 million annually and would not apply to the four cities within the borders of the county. San Francisco Board of Supervisor Jane Kim will introduce a set of amendments designed to squeeze more housing out of the office oriented rezoning of Central SoMa neighborhood. Kim wants to change the zoning north of Harrison Street from “mixed-use office” to “mixed-use residential”, adding housing to that part of the plan’s designated area. City planning officials say the change would result in about 250 more housing units. Activists behind the “ Calexit ” proposal have scrapped their old plans in favor of a new secessionist proposals that would create an “autonomous native nation” within a new independent state. While old proposals have been criticized for not doing enough for Native Americans, the new proposal seeks to address that by handing off a large swath of the theoretical new California. According to the US census, California is home to the largest Native American population with more than 100 federally recognized tribes. There have been more than 200 efforts to cut up California since 1849. According to an opinion poll from Reuters/ Ipsos, 32 percent of voters support peaceful withdrawal from the union. (See prior CP&DR commentary .)  Marin County Supervisor Damon Connolly, who sits on the MTC and the Bay Area Toll Authority, brought up the possibility of converting the planned Richmond-San Rafael Bridge bicycle-pedestrian path into another vehicle lane during rush hour. The path is schedule to be completed in early 2019. The Bay Area Toll Authority Oversight Committee decided to study the idea in early March and allocated $100,000 to the task. While the 10-foot cycling-walking pathway would be available the majority of the time, the loss of the path during certain times worries some cycling advocates. Cycling advocates believe excluding bikes during rush hour would significantly reduce the number of people who might otherwise opt to ride bikes to work. The Yolo County District Attorney is filing a civil suit against several developers that failed to honor rules about building on a Native American burial site in a West Sacramento neighborhood. According to the release, the complaint alleges the developers were aware they improperly handled remains. When there is a discovery of Native American remains or artifacts during construction, federal preservation laws require notification to the Secretary of the Interior and also protection of discovered remains. During the latest survey, conducted in 2015, multiple human remains had been unearthed and scatted during construction. Yolo County District Attorney, Jeff Reisig, said in the news release, “The flagrant disregard of the sanctity of the burial site is indefensible and deeply offensive.” The Alliance of Californians for Community Empowerment have filed a lawsuit against the City of LA to eliminate the “pocket veto” denouncing the requirement as “an illegal, unnecessary, arbitrary, and discriminatory barrier to the construction of affordable and supportive housing.” Under current city regulations, housing developers seeking funding for affordable or homeless housing projects must get a “letter of acknowledgement” from the council member who represents the area. The lawsuit argues it allows councilmembers to stop housing for poor people without any common standard or public justification. The newly proposed Orange Line Transit Neighborhood Plans project would allow taller buildings along the 18-mile Metro Orange Line in Los Angeles’s San Fernando Valley. The line carries about 30,000 riders per day. The plans do not offer specific development projects, but rather seeks to rezone pieces of industrial land to allow higher office towers and multi-family residential buildings within a half-mile radius of the Orange Line stops in North Hollywood, Van Nuys, and Sepulveda. The plan is partially funded through Metro grants. Restore Hetch Hetchy  lost another court battle recently. The group has argued that San Francisco should not have rooted its water supply in a national park because it overran a pristine valley and violated a provision of the state Constitution requiring reasonable water use. However, California’s Fifth District Court of Appeal in Fresno ruled that a Tuolumne County judge was correct two years ago when he tossed a lawsuit seeking to drain the reservoir. The Berkeley group has said they plan to fight to the California Supreme Court.

As California confronts its the housing crisis largely through traditional debates over the merits of infill redevelopment and greenfield development, the concept of “yes in my backyard” has taken on new literal meaning with the rise of accessory dwelling units. Ironically, one of the cities shortest on backyard space has been leading the way to implement perhaps the simplest of infill strategies.

The Legislative Analyst’s Office summarized Proposition 10 , the proposed measure that would expand local governments' authority to enact rent control on residential property by suspending the Costa-Hawkins Act. The fiscal impact conclusion was that there would be potential net reduction in state and local revenues of tens of millions of dollars per year in the long term. Depending on the actions taken by local communities, revenue losses could be less or considerably more. Prop. 10 would repeal the measure in Costa-Hawkins that limits local rent control laws. Under the proposed measure, cities and counties can regulate rents for any housing (including single-family) and can limit how much a landlord may increase rents when a new renter moves in. Prop. 10 also would require that rent control laws allow landlords a fair rate of return. Overall, the LAO analysis found the measure would reduce state and local revenues in the long term, with the largest effect on property taxes. $1.8 Billion from Army Corps to Protect Sacramento The U.S. Army Corps of Engineers awarded $1.8 billion in federal funds to complete multiple flood protection projects in the region, including levee work and raising the Folsom Dam. These projects, along with a separate levee project along the Natomas basin, will provide Sacramento with a 300-year flood protection level. The majority of the funding will be used to build deeper seepage walls inside the levees and more protection from erosion around the Pocket neighborhood, strengthen the Arcade Creek and the Natomas East Main Drainage Canal, and widen the Sacramento Weir Bypass which diverts high water flows to the Yolo Bypass. The remaining funds will help raise Folsom Dam by 3.5 feet, increasing storage space in the lake by 40,000 square-feet. The Army Corps allocated all the funding up front, allowing work to begin as soon as next year and take about 5-7 years to complete. Huffman Calls for Federal Protection of North State Rivers California 2nd  District Congressman Jared Huffman introduced a bill that would protect 260,000 acres of North Coast land and hundreds of miles of rivers in Humboldt, Del Norte, Mendocino, and Trinity counties from development. The Northwest California Wildernesses, Recreation, and Working Forests Act not only includes wilderness protection but also new trails, coordinating cleanup of illegal marijuana grows on public land, and bolstering defenses against large wildfires. The bill would prohibit new damns, major water diversions, logging, mining and other development on about 380 miles of rivers. The bill also calls for the creation of 730,000 acres of forest restoration areas in the South Fork Trinity River, Mad River, and North Fork Eel watersheds to reduce the danger of large wildfires. Study Looks Into Social Equity in Oakland City University of New York’s Institute for State and Local Governance released a study on Oakland’s racial disparity. CUNY chose Oakland to be the first city for which it would produce a racial equity report card that could help city officials set policies and practices to ensure fairness. The city scored a 33.5 points out of a possible 100, with 1 representing the highest possible inequity and 100 representing highest possible equity. One finding was the median income for white households was $110,000 while median income for black households was $37,500. Asian households had a median income of $76,000 and Latino households $65,000. One in four blacks and more than one in five Latinos live at or below the federal poverty level in Oakland. Quick Hits & Updates  The City of Mountain View has barred companies from fully subsiding meals for their employees in an effort to promote nearby retailers. The ruling applies to the Village at San Antonio Center and the new Facebook offices. The project-specific requirement passed in 2014, but attracted little notice because the offices were years away from opening. A new report on the Downtown Los Angeles Streetcar has revealed an even larger budget for the project- just under $291 million. That’s $16.5 million more than an estimate for the project last year. However, the project doesn't anticipate any further delays with construction potentially beginning next year and completion expected in 2021. The rail line will have 23 stops along its 3.8 mile loop through downtown. The City of Westminster has given a local developer a 25-year tax subsidy to build a four-star hotel, banquet hall, and mixed-use residential project. This would be the city’s first full-service hotel project. The Bolsa Row project is based on French colonial architecture in Saigon by developers Bac Pham and Joann Pham. The project would also include a festival street for outdoor events, 37,550 square-feet of retail space, 15,689 square-feet of event space, a 144-room hotel, and 201 multi-family residential units. Five transformative public spaces in the US, Spain, and China have been selected as finalists for the ULI’s 2018 Urban Open Space Award . One of the finalists is Ricardo Lara Park in Lynwood. The 5-acre linear park links neighborhoods divided by the I-105 freeway. The park opened in 2015 and includes a community garden, shade pavilion, dog park, children’s play area, adult fitness area, and bioswales and basins to treat runoff. The winner will be announced at ULI’s 2018 Fall Meeting, set for mid October in Boston. The Madera City Council voted unanimously to waive 75 to 100 percent of city plan review and building permit fees for at least the next one to two years in the hopes of spurring redevelopment in parts of downtown. The Downtown Development Incentive Program came about after interactions with residents, business owners, and City Councilmembers grappled with high vacancy rates, blight, and a long, steady decline of Madera’s downtown business area. The program will allow the waiver of 100 percent of engineering fees and 75 percent of planning and building inspection fees. Sonoma County Superior Court Judge René Chouteau has voided Sonoma County’s controversial sale of public land to a developer. The judge said county officials erred in determining their agreement to sell the 82-acre site of the old county hospital complex was exempt from state law that triggers environmental review. The City of National City may become the first in San Diego County to embrace rent control. The community currently has more than two-thirds of the residents as renters. City Council voted unanimously to place a resident-drive initiative on the November ballot. A new report “ Automobility ” released by traffic consultant Bruce Schaller analyzed ride-hailing apps effects on city traffic. Schaller’s findings include nine cities account for 1.2 billion, or 70 percent of all rides in 2017 and ride-hailing trips are far more popular in San Francisco than anywhere else. The report also found that Lyft and Uber have an overall 180 percent increase in driving on city streets. Schaller also found that self-driving cars would be most useful in the form of shuttle-like group commutes. Currently, ride-hailing services are primarily single-passenger trips.

It’s not uncommon for environmental groups to use lawsuits – especially lawsuits under the California Environmental Quality Act – to obtain in court what they can’t get through the normal legislative process. But they don’t always succeed.

The Public Policy Institute of California (PPIC) released a statewide survey, called Californians and the Environment , centering on the governor’s race and key environmental issues. A majority of likely voters, 56 percent, say the candidates’ environmental positions are very important in determining their votes. The survey found 62 percent of Californians say global warming is extremely or very important to them personally, while an ABC News/Stanford/ Resources for the Future poll found 48 percent of American adults feel the same. Mark Baldassare, PPIC president and CEO, summed up the report, “Many Californians are concerned about the personal impact of global warming in the wake of a prolonged drought and in the face of fears that extreme weather may result in more severe wildfires.” The survey also found US Senator Dianne Feinstein leads state senator Kevin de Leon 46 percent to 24 percent among likely voters, with 9 percent undecided. The survey also found 58 percent of likely voters would vote yes on the $8.9 billion water bond. Almost 70 percent of adults oppose more drilling for oil off the coast.  Los Angeles Considers Routes for North-South Light Rail Extension  Los Angeles Metro released five alternative alignments for extending the Crenshaw/LAX light rail line north of the Expo Line. The 8.5- mile $2 billion line is currently under construction. As of last week, the project is 82 percent complete. The Line was expected to be opened October 2019, but a $8 million change order was recently approved to “stop the bleeding” on schedule slippage. The five alternatives would continue north on Crenshaw Boulevard corridor. Four branch west onto San Vicente Boulevard, connecting with Metro Red Line at Hollywood/Highland while the other alternative branches east along Olympic Boulevard and then north to connect to the Red and Purple Lines at Wilshire/Vermont. The proposed Crenshaw Northern Extension alternatives range from $3 billion to $4.7 billion in cost. Brisbane Voters to Decide Fate of Massive Undeveloped Parcel The Brisbane City Council voted last week to put a ballot measure before voters in November to amend the city’s general plan and allow the construction of thousands of new homes on the vacant 684-acre Baylands. The current general plan prohibits housing on the former rail yard and garbage dump. However, developer Universal Paragon Corporation (UPC) owns the site and has campaigned for more than a decade to create a mixed-use development with up to 2,200 new homes and 7 million square-feet of commercial space. The site still needs to be cleaned up, which could take three years, and groundbreaking won’t occur for at least a decade. In 2016, San Francisco threatened to annex the land if Brisbane did not consider housing developments. State lawmakers have also warned of the likelihood that they would pass legislation deferring to the developer’s vision for the site. Sacramento Goes Big on Electric Vehicles  Sacramento has launched a $44 million "Green City” program, funded by Electrify America, which seeks to turn the city into the capital of electric cars. The initiative would upgrade the city’s electric vehicle infrastructure, adding hundreds of cars, charging stations, and buses. The goal is to see if building a support network for more sustainable transit can be replicated in other cities. The program begins this summer with car-sharing services Envoy and Gig which will add hundreds of electric cars to the streets. New zero-emission electric bus lines are being added to the regular service as well as 10 charging stations with super-fast 350kW charging. Planners Advance New Vision for Old Town San Diego  San Diego city officials are proposing a community plan update for the Old Town San Diego neighborhood. The plan would increase housing and commercial projects, but preserve the historic core of parks and tourist attractions. The plan would densify housing near the edges of Old Town near a transit center and along Pacific Highway, Interstate 5 and Interstate 8. The proposal would also widen sidewalks and transform a city-owned parking lot into a public place. The population of the 274-acre community would increase from 830 to 2,400 under the plan and triple the number of housing units from 474 to 1,405. The proposal has been in the planning stages for five year and is being praised by community leaders, historic preservationists, and the development industry for striking the appropriate balance. After the Planning Commission hearing, the community plan update is expected to be presented later this year to the City Council for approval. Quick Hits & Updates The Strategic Growth Council released its 2018 Annual Report , which provides an in-depth look into the progress the council made through our programs and initiatives this year.  Redondo Beach  withdrew applications for a proposed waterfront redevelopment before the California Coastal Commission. The developer of the proposed $400 million project, CenterCal Properties, withdrew its portion of the joint applications before the commission earlier this month. Mayor Bill Brand, a fierce opponent of the project, said “The CenterCal waterfront project is dead. It’s been a long road, years of working with them and years of fighting them. Unfortunately, they did not work with the community. It's a shame because it was a great opportunity.” Voters had limited the scope of the project in a ballot measure last year.  San Diego MTS’s executive committee voted to recommend the full board hire a contractor to start working on a potential 2020 ballot measure to raise sales taxes for transit improvements. The measure would draw from MTS’s improvement plan and include projects in SANDAG’s regional plan through 2050. The City of Pasadena will terminate its agreement with Metro over the struggling Metro Bike Share program. The revenue from the program has been so low that the program cost’s now threaten the City’s total transit operating budget. The average monthly cost for the program over the past ten months have been about $98,000 per month. Ridership flatlined after a brief period of success in September 2017. The City of Los Angeles intends to hire a consultant who can help address traffic gridlock, shortage of hotel rooms, and stubborn homelessness near tourism sites. The move is intended to address  problems that might prevent the city from reaching its goal of welcoming 50 million tourists a year by 2020. The US Army Corps of Engineers will fully fund the $177 million South Bay Shoreline Project . The project is an effort to build four miles of new levees and restore 3,000 acres of wetlands near San Jose. The project was one of the first to receive local support from Measure AA, the $12 parcel tax measure approved by voters in 2016 to fund multi-benefit wetland restoration and flood protection projects. Construction is slated to begin next summer and the new levee is expected to be completed in 3-5 years. Hard Rock Cafe International announced it will partner with the Enterprise Rancheria  tribe to build a mega-resort in Yuba County in greater Sacramento. Preliminary site work is under way, but neither Hard Rock nor the Enterprise tribe would discuss details about the resort. However, credit-rating agencies have reviewed the project’s financial documents say the resort will cost about $440 million and is expected to open in October 2019. The just-formed Delta Conveyance Finance Authority , led by the regional water agencies backing the tunnels project, are expected to start the application process for a $1.6 billion federal water infrastructure loan administered by the US EPA. The controversial $17 billion Delta tunnels project is still facing critical permits and legal challenges, and some farming groups have not committed to paying for part of the project. Earlier this year, Metropolitan’s board approved a $10.8 billion investment in California WaterFix. The San Diego City Council voted, 6-3, to outlaw vacation rentals in secondary homes, limiting STRs to primary residences only. The effect of the action will be curtailing investor activity in the short-term rental market while also barring residents and out-of-towners from hosting short-term stays in multiple properties other than where they reside. While the council was expected to weigh a special exemption for Mission Beach vacation rentals that have already paid required transient occupancy taxes, the council majority was not willing to along with that. Roughly 44 percent of the housing stock in Mission Beach is estimated to be short-term rentals. Attorneys for two families who bought homes in the San Francisco’s Bayview district development in 2015 and 2016 have filed lawsuits against both the developer, FivePoint, and property owner Lennar. The two families claim FivePoint and Lennar failed to disclose to prospective residents the extent of contamination of the property. They also claim the developer did not inform home buyers about allegations that Tetra Tech had faked soil samples. A draft of the City of Stockton’s General Plan update, Envision Stockton 2040 , was released and will be open for public review until August 10. A public hearing by the Stockton Planning Commission on the Update and associated EIR will be held August 2. A new study from WalletHub ranked the 100 largest cities in the US on 29 metrics to determine how driver-friendly each city is. The study looked at cost of ownership and maintenance; traffic and infrastructure; safety; and access to vehicles and maintenance. San Francisco was ranked the second worst city (99), Oakland was third worst (98), and Los Angeles was ninth worst (94). Oakland also had the highest rate of car theft. According to a new report from the Bay Area Council Economic Institute and consulting firm McKinsey, the Bay Area’s annual growth rate of 4.3 percent over the past three years was nearly double that of the US as a whole. The region would have a GDP of $748 billion, behind only 18 countries. Overall employment in the region grew 26 percent since the end of the recession with more than 750,000 workers in tech jobs since July 2017. The Riverside City Council voted 4-3 to ban marijuana dispensaries, commercial marijuana cultivation and outdoor growing within the city. The permanent ban will go into effect August 24, about two weeks before the city’s temporary moratorium with similar prohibitions expires. The vote will still allow people to use marijuana and grow up to six plants indoors. The Frontier Group’s report “Highway Boondoggles 4: Big Projects. Bigger Price Tags. Limited Benefits" report highlights nine proposed highway extension projects across the country that are slated to cost $30 billion. The report’s one California project is the US Highway 101 Expansion in San Mateo, which will widen the freeway bringing more cars into an already congested area and directly conflicting with the state’s global warming goals. The project is expected to cost $534 million. The City of Inglewood wants to open its own elevated transit system to move people between The Forum, the adjacent NFL stadium opening in 2020, and a potential Clippers arena. The 1.8 mile automatic people mover would start in downtown Inglewood near Metro’s Crenshaw/ LAX light-rail line. A round-trip could take just 13 minutes and is estimated to cost more than $600 million to build and an additional $18-$20 million annually to operate. The  San Diego County Board Supervisors approved new developments that would add hundreds of new homes in Harmony Grove in North County. While many argued at the hearing for more housing, some are concerned about the increased risk for fire. Erik Bruvold, CEO of the San Diego North Economic Development Council said the county is short 53,000 housing units, and North County is short 20,000 units. Supervisors are fast-tracking approval of nearly 4,000 homes this week, all of them in areas where the county’s General Plan has formerly limited development. Groundbreaking for the Orange County Streetcar through Santa Ana and Garden Grove has been pushed to the fall and cost estimates have increased by more than $100 million. The project is now estimated to cost $407.76 million, up from a nearly $300 million estimate made in 2017. The project is expected to connect Metrolink stations and some of the county’s busiest bus routes with residential and employment hubs such as downtown Santa Ana and the Civic Center. The tracks will be along existing roads on the streetcars 4.15 mile route. The streetcar will have electric vehicles and travel in lanes with car traffic. Pacific Grove residents filed lawsuits against the city on the new ordinance that limits the number of short-term rentals allowed within its borders saying it violates the California Coastal Act. The two couples filed the complaint claiming the city did not get approval from the Coastal Commission before it was adopted. In February, the city council passed the ordinance 4-1 which put in place a lottery system that decreased the number of rentals from 290 to 250 so that only 15 percent of housing per block is dedicated to such rentals. Preservationists are hoping to secure city monument status for three historic Los Angles Times building by submitting applications to the Cultural Heritage Commission. Official recognition of the buildings as historic-cultural monuments would put a temporary stay on demolition and substantial alterations. Omni Group, which owns the buildings, is considering redevelopment of the site as a high-rise residential and retail complex.  Nine teams are competing to redevelop the historic Fort Winfield Scott campus in the Presidio . The companies include the World Economic Forum, OpenAI, and co-working space operator WeWork. The mostly vacant 22-building property spans 30 acres and is overseen by the Presidio Trust. The group will hold a public hearing on the nine competing bids on July 25 and pick a developer sometime next year. A new grand jury report “Subsidizing a Lifestyle” found Napa County is granting millions of dollars in tax breaks to preserve wine country farmland that already appears safe from being paved over. The watchdog group said the Williamson Act tax breaks designed to preserve farms are concentrated in the hands of the wealthy and corporation that buy Napa County vineyard land. Conservation groups and transportation agencies reached a multi-million dollar settlement to protect wildlife habitat and reduce pollution problems along two long-congested Southern California freeways: Mid County Parkway and SR 60 in western Riverside County. The agreement dedicates $17 million to protect wildlife habitat, install air filtration decides in homes and schools, construct solar energy panels at commuter rail stations and fund park renovations in affected communities. The settlement also increases incentives for public transit and carpooling, provides increased pedestrian and cycling access, increases safety measures for motorists and protects key wildlife corridors. LA County Supervisors Sheila Kuehl and Hilda Solis are proposing to cap rent increases at three percent. If the board approves the proposal the rent cap would apply for six months but could be extended by the board. The California Apartment Association is mobilizing members to attend the public meetings and contact county supervisors to convey that a rent moratorium is not the solution to the county’s affordable housing problem. The deadline passed for proponents of California initiative to pull their measures off the state’s November ballot, but it hasn’t stopped the California Assn. of Realtors from hoping it can still strike a deal with lawmakers. Prop 5 would allow homeowners older than 55 to take a portion of their Prop 13 property tax benefits with them if they move within the state. The organization is now interested in having state legislators put forward an alternative measures instead, which would face less opposition. The Orange County Water District board voted, 6-2, to approve non-binding contract terms with Poseidon, which has spent 20 years on the proposed  Poseidon  desalination plant in Huntington Beach. The plan for the $1 billion plant and water distribution infrastructure would increase the average residential customer receiving the water by an estimated $3 to $6, however it would ensure the area has water during droughts. The company must still receive permits from the Regional Water Quality Control Board, which is scheduled to consider the application in December, and the California coastal Commission, which is expected to take up the issue next year.

CP&DR Vol. 33 No. 7 July 2018

The Second District Court of Appeal has ruled that the “unusual circumstances” rule laid out in the Berkeley Hillside case – which limits the use of exemptions under the California Environmental Quality Act – does not apply to a proposed lease extension for the Diablo Canyon nuclear power plant. Rather, the court affirmed a lower court ruling saying that the State Lands Commission properly used the “existing facilities” categorical exemption under CEQA. Located near Avila Beach in San Luis Obispo County, Diablo Canyon is operated by Pacific Gas & Electric under two leases with the State Lands Commission that were set to expire in 2018 and 2019. PG&E sought lease extensions to 2025, when it plans to shut down the plant. The commission approved the lease extensions but also invoked the CEQA exemption and therefore did not conduct any environmental analysis on the lease extension. Environmentalists sued, claiming among other things that the existing facilities exemption was not meant to apply to nuclear power plants but, rather, only to transmission lines because of language that called “providing” electricity. The Second District shot this argument down. “The word ‘provide,’ as plainly understood, plainly encompasses the generation of power in addition to its mere transmission.” More significantly, the court rejected the environmentalists’ argument that the lease extension constituted an “unusual circumstance” under Berkeley Hillside , thus requiring more analysis to justify the exemption – among them, the fact that the plant is a nuclear plant, the size of the plant, and its proximity to marine life. In Berkeley Hillside , the California Supreme Court created a two-step test to determine whether and when a CEQA exemption can be overridden by unusual circumstances. The size and location arguments could be important in future situations, as these are likely to be reasons cited to invoke the “unusual circumstances” in the future. On the size question, the court concluded that the environmentalists failed to show how the plant’s size, which will not change under the lease extension, will create any adverse change. As to the location, the court said that while there may be impact on marine life, these impacts are current impacts and would not be altered by the lease extension. The Case: World Business Academy v. California State Lands Commission , No. B284300 (June 13, 2018). The Lawyers: For World Business Academy: Christina A. Humphrey, Humphrey & Rist, christina@humphreyrist.com For State Lands Commission: Deputy Attorneys General Deborah Smith, Deborah.Smith@doj.ca.gov , and Christina Morkner Brown, Christina.Morkner@doj.ca.gov For State Lands Commission: William White, Shute Mihaly & Weinberger, white@smwlaw.com For Pacific Gas & Eletric: Damon P. Mamalakis, Armbruster, Goldsmith & Delvac, damon@agd-landuse.com

Sometime this fall, the U.S. Supreme Court will take up a case that court decide the future of the Endangered Species Act – or, at least, the future of the “critical habitat” provisions that have played such a huge role in shaping California’s land-use patterns over the last generation. could be the first big test of Brett Kavanaugh – if he is seated as Justice Anthony Kennedy’s successor – in the environmental and land use arena. At first glance, it would appear that Kavanaugh would likely favor the landowner in this case, especially given his D.C. Circuit ruling in a similar case from Otay Mesa in San Diego back in 2011. But the question isn’t that clear-cut. Is Kavanaugh a pro-business judge who’s anti-environment? Or does he see himself instead as a strict guardian against regulatory overreach. It may not make much difference in the end. But if Kavanaugh really is focused on holding the regulatory agencies’ feet to the fire, maybe he’s not an automatic anti-environment vote in all cases. With the possible exception of the definition of wetlands – which the Trump Administration is trying to change – no environmental is more influential in shaping California’s land-use patterns that critical habitat designation under the Endangered Species Act. For all intents and purposes, developers can build on critical habitat – because they can’t disturb the habitat itself. Oftentimes, developers and government agencies choose instead to create a habitat conservation plan, which lays out areas that can be developed and areas that cannot. Virtually every developing area on the suburban fringe in the whole state – from Yolo County down to Riverside and San Diego – has been profoundly affected by either the fact or the threat of critical habitat designations. And could profoundly alter how that process works, depending on how it’s decided. involves several thousand acres in Louisiana that was designated by the Fish & Wildlife Service as critical habitat for the dusty gopher frog. The frog itself wasn’t found on the Louisiana property – but, rather, only on nearby property in Mississippi. But the Fish & Wildlife Service determined that survival of the species required not only the property where the frog was found, but habitat where the frog thrive but was not found, because isolated ponds such as those found on the Louisiana property were This finding was the basis for the Fifth Circuit’s ruling in favor of the Fish & Wildlife Service in the case. The Fifth Circuit concluded that “all of the experts agreed that designating occupied land alone would not be sufficient to conserve the dusky gopher frog” and isolated ponds in geographically discrete locations were necessary for the species’ survival. In , Kavanaugh’s ruling overturned a decision by the Fish & Wildlife Service to declare 143 acres of land in the Otay Mesa section of San Diego as critical habitat for the fairy shrimpx But in that case, the Fish & Wildlife Service didn’t base its critical habitat ruling on the notion that unoccupied territory was necessary for survival of the species. Rather, the Service argued that the fairy shrimp present – even though it had been found only once in eight attempts to find it, and then four years after it was listed. So, in that case, Kavanaugh’s ruling represents the kind of regulatory “gotcha” that he’s known for. Maybe if the Service had determined that the Otay Mesa property was vital to the species even if the land was unoccupied, he would have ruled the other way. But they didn’t, and he didn’t. Or maybe not, and that’s the big question about Kavanaugh. Like many regulatory rulings involving endangered species, wetlands, and other environmental issues that can affect land-use patterns in California, the Fifth’s Circuit’s ruling in depends largely on the court’s interpretation of ., 467 U.S. 837, 843 (1984). In this environmental challenge to the Reagan-era Environmental Protection Agency’s interpretation of the Clean Air Act, the U.S. Supreme Court ruled that, if congressional direction is not clear in a statute, then the court must give deference to the regulatory agency interpreting the statute. (The EPA administrator at the time was Anne Gorsuch, mother of the Trump-appointed Supreme Court Justice Neil Gorsuch.) This ruling gives judges a lot of wiggle room in overseeing regulatory agencies. If they decide a law does not provide a regulatory agency with direct guidance, they can invoke the rule. If they decide the law is clear, they can say the rule doesn’t apply. In , the Fifth Circuit decided that the rule applies. In the Endangered Species Act, the court ruled, Congress did not provide a specific definition of habitat that is “essential” to the conservation of the species but, rather, left that decision up to the Secretary of the Interior. And so the Fish & Wildlife Service had the discretion to decide whether unoccupied territory was essential to the preservation of the frog. But here’s the thing: Other than the highly publicized issues about presidential power, nothing in Kavanaugh’s record has drawn more attention so far than his criticism of the rule. In a 2016 book review in the , Kavanaugh called “an atextual invention of the courts” that is “nothing more than a judicially orchestrated shift of power from Congress to the Executive Branch.” He said that whichever party is in power will use seek to use aggressively to pursue its agenda. In the law review – as on several other occasions – he has said it is difficult to know when to apply the rule and when not to. So the question for California land use is how will Kavanaugh approach the question in the case. If he decides that shouldn’t apply – and he’s the deciding vote on the court – then the Fish & Wildlife Service will be boxed in on critical habitat much more than it is now and landowners will have much less motivation to engage in HCPs. But is that what Kavanaugh would really do? Opinions are all over the place. Some say he wants to overturn – and maybe is the case he would want to use to do it. Others say he just wants to box it in. Still others , however, say that because he finds difficult to apply, he’ll actually avoid applying it whenever he can – and that is the most likely scenario in the case. The Trump Administration is likely to seek major changes in endangered species and wetlands laws. But even without legislation, will interpret those laws very differently than the Obama Administration. (The Administration’s attempts to repeal Obama’s “WOTUS” rule is a good example.) The Supreme Court will inevitably call, as Chief Justice John Roberts puts it, “balls and strikes” on these interpretations. If Kavanaugh is confirmed, the size of his strike zone on is likely to have a significant impact on California’s future land use patterns, especially in the Inland Empire and the Central Valley.