A property owner’s lawsuit against a San Francisco housing activist has been swatted down by the Ninth U.S. Circuit Court of Appeals. The court found, essentially, that the First Amendment protected the activist’s complaint about the property owners’ plans. The owners of the Empress Hotel, in San Francisco’s tough Tenderloin district, filed the lawsuit. During the late 1970s, the city classified the Empress as a mixed-use hotel, with 58 tourist rooms and 30 residential rooms. Starting in the early 1980s, the Empress fell into disrepair, and it later closed for a number of years. Eventually, Vijay and Ramilaben Patel purchased the Empress from Vijay Patel’s parents. The new owners invested about $1.5 million to refurbish the facility for use as a tourist hotel and received permits from the city authorizing the tourist use. However, Randall Shaw, executive director of the Tenderloin Housing Clinic, a nonprofit property management, social service and advocacy organization, protested the Patels’ plans. In a letter to the city’s zoning administrator, Shaw contended that the Empress’s tourist use had been abandoned and that, under the city’s ordinance, the Empress could reopen only for residential purposes. San Francisco has an extensive zoning scheme than seeks to preserve single-room occupancy hotels as affordable housing. After investigating, Zoning Administrator Lawrence Badiner agreed with Shaw. Badiner concluded that the tourist use had been discontinued for more than three years and could be re-established only if the Patels complied with current regulations. Those regulations require development of replacement affordable housing units or the payment of in-lieu fees. The Patels then sued the city, Badiner, Shaw and other parties under the Civil Rights Act (42 U.S.C. § 1983), arguing that the city and individual government officials had delegated zoning decisions to Shaw. District Court Judge Phyllis Hamilton dismissed the claims against everyone except Shaw. After the Patels amended their lawsuit, Hamilton ruled that Shaw’s actions were protected by the Noerr-Pennington doctrine and dismissed the lawsuit. The Patels appealed the ruling for Shaw, and they won a minor victory at the Ninth Circuit. The three-judge appellate panel first ruled that Judge Hamilton incorrectly applied the “heightened pleading standard” to the Patels’ lawsuit. That standard requires the petitioner “to state with factual detail and particularity the basis for the claim.” Instead, the district court should have held the Patels to the lesser “notice pleading standard,” the Ninth Circuit ruled. Nevertheless, even applying the more lenient standard, the Ninth Circuit ruled against the hotel owners. “Under the Noerr-Pennington doctrine, those who petition all departments of the government for redress are generally immune from liability,” Judge Sidney Thomas wrote for the Ninth Circuit. “Although the Noerr-Pennington doctrine originally immunized individuals and entities from antitrust liability, Noerr-Pennington immunity now applies to claims under § 1983 that are based on the petitioning of public authorities.” Thomas cited , 227 F.3d 1214, 1231: “Noerr-Pennington is a label for a form of First Amendment protection; to say that one does not have Noerr-Pennington immunity is to conclude that one’s petitioning activity is unprotected by the First Amendment.” The Patels argued that Noerr-Pennington protection did not apply to Shaw because his activity was a sham and part of a conspiracy. The Ninth Circuit, however, ruled that the conspiracy exception to Noerr-Pennington could be applied only to government officials, not to private citizens. And, the court ruled, “ t appears beyond a doubt that they can prove no facts demonstrating that Shaw’s activities fall under the sham exception.” The Ninth Circuit upheld the judgment against the Patels. But, because of its decision on the pleading standard, the Ninth Circuit reversed the lower court’s award of $13,109 in attorney fees to Shaw. The Case: , No. 03-16706, 05 C.D.O.S. 7369, 2005 DJDAR 10081. Filed August 18, 2005. The Lawyers: For Empress: Andrew Zacks, (415) 956-8100. For Tenderloin Housing Clinic: Stephen Collier, (415) 771-9850.

A settlement agreement between the City of Malibu and a developer has been thrown out by the Second District Court of Appeal because the agreement limited the city’s police powers and was improperly adopted in closed session. The agreement committed the city not to make zoning decisions that would block the proposed housing development and to exempt the project from density requirements. The court ruled that the density exemption amounted to a variance that required administrative proceedings and findings for which the city did not provide. Additionally, the city’s actions required public proceedings. Because the city acted in closed session, it violated the state’s open meeting law, known as the Brown Act, the court held. The settlement “is intrinsically invalid because it includes commitments to take or refrain from regulatory actions regarding the zoning of Trancas’s development project, which may not lawfully be undertaken by contract,” Presiding Justice Candace Cooper wrote for the unanimous three-judge panel. The city has requested a rehearing, and City Attorney Christi Hogin said the Brown Act issue may be one the state Supreme Court is willing to consider. Hogin said the Second District decision was erroneous largely because the court read more into the settlement agreement that either the city or the developer did. “We all agree that you can’t contract away the police power. And we all agree that you can’t grant a variance in closed session. And we all agree you can’t guarantee zoning forever unless there’s a development agreement, and then it’s only for 10 years,” Hogin said. “What we disagree on is whether our settlement agreement did these things.” The proposed project has a lengthy administrative and legal history. Before Malibu incorporated, Los Angeles County approved a subdivision map for the 35 acres near Pacific Coast Highway and Trancas Canyon Road in 1980. That map apparently was never acted upon, and the county approved two subdivisions in 1985. These called for 15 single-family lots on 26.5 acres, and 52 condominiums on the remaining 8.5 acres. Eight years later — and after the coastal enclave incorporated — the landowner submitted proposed final maps to the city, one of the final steps before pulling building permits. The city refused approval, saying the tentative maps had expired. The landowner sued and both the trial court and the Second District determined that a combination of extensions had preserved the maps’ vitality. However, other issues held up the final maps, including the question of permits from other agencies. There was more litigation, this time involving the Coastal Commission. The property changed hands. And still the city refused to approve the final maps, citing unfulfilled tentative map conditions. In 2002, property owner Trancas-PCH sued the city to prevent it from disapproving the final maps. But in March 2003, with the lawsuit pending, the City Council voted unanimously to disapprove the final maps because Trancas lacked necessary permits from the Coastal Commission and the Regional Water Quality Control Board. A few weeks later, the city and Trancas began negotiating, and, in April 2003, the City Council approved the settlement agreement in closed session. The settlement required Trancas to record a deed restriction limiting development to 32 townhouses on 8.5 acres, and to dedicate the 26.5-acre parcel to the city for parkland. In exchange, the city agreed not to enact regulations that would prohibit the development and to expedite the processing of a general plan amendment. The Trancas Property Owners Association, whose members own houses on nearby Trancas and Broad beaches and who have been fighting development on the site for decades, then sued the city. The property owners association argued the decision to disapprove the final map was correct, the revised project did not conform with the tentative map, the settlement agreement should have undergone environmental review, and the City Council violated the Brown Act. Los Angeles County Superior Court Judge David Yaffe ruled for the city. On appeal, the Second District overturned Yaffe. The court first dealt with what it called “retraction of zoning authority.” The court likened the situation to that in the landmark case, , 17 Cal.3d 785 (1976). In Avco, the state Supreme Court ruled that the government may not contract away its ability to exercise the police power in the future. ( led to the passage of laws permitting “vesting” tentative maps and development agreements.) In the Malibu case, the property in question is zoned for one residence per five acres. According to the Second District, the settlement agreement’s exemption from this density regulation was exactly what Avco condemned. “Moreover, it functionally resembles a variance,” Cooper wrote. “Such departures from standard zoning, however, by law require administrative proceedings, including public hearings followed by findings for which the instant density exemption might not qualify. Both the substantive qualifications and the procedural means for a variance discharge public interests. Circumvention of them by contract is impermissible.” The city argued that the settlement agreement did not ensure development would occur and that Trancas would still have to go through the administrative process. But the court determined the city “has already made impermissible promises and commitments, which, contrary to its representations, extend beyond simply renewed consideration of the final maps.” Regarding the Brown Act, the court found the question was whether the act’s public meeting exemption for advice about pending litigation “authorizes approval in closed session of a settlement agreement containing dynamic features.” Courts have construed Government Code § 54956.9 to permit a city council to decide in closed session to settle litigation. But that authority must be harmonized with the need for public hearings, the court ruled. “We believe it ineluctable that, when such a settlement extends to authorization or taking of action that by law requires public decision-making, § 54956.9 cannot and does not provide an exemption either from that mandate or from the public meeting norm of the Brown Act. The City Council therefore was not authorized to adopt the present SA in closed session, and the SA was void for that reason as well as those previously discussed.” City Attorney Hogin found that court’s Brown Act conclusion particularly disturbing. The court’s invalidation of the settlement based on a Brown Act violation places a new limitation on what may be discussed in closed session, she said. In a letter supporting Malibu’s rehearing request, San Francisco Deputy City Attorney Paul Zarefsky agreed with Hogin, writing that the court’s decision “introduces uncertainty into the law regarding closed sessions for pending litigation that was previously well-settled.” After the decision, the developer, whose 2002 lawsuit against the city is still pending, indicated it would pursue the larger development originally approved in 1985. The Case: Trancas Property Owners Association v. City of Malibu, No. B174674, 05 C.D.O.S. 8605, 2005 DJDAR 11697. Filed September 26, 2005. Modified October 6, 2005 at 2005 DJDAR 12037. The Lawyers: For the property owners association: John Bowman, Jeffer, Mangels, Butler & Marmaro, (310) 203-8080. For the city: Christi Hogin, Jenkins & Hogin, (310) 643-8448. For Trancas PCH: Barry Levy, Horvitz & Levy, (818) 995-0800.

From rural counties experiencing modest urbanization to California’s fastest growing areas, regional transportation impact fees are being levied on new development. Nearly unheard of five years ago, the fees are bringing in hundreds of millions a year across the state for road work. The fees vary widely from area to area, ranging from a few hundred dollars for a house in one community to nearly $1 million for a large retail building elsewhere. Local transportation officials say they need the money to pay for arterial road projects, freeway interchanges and other improvements of a regional nature that are not funded by local impact fees, the state or the federal government. It is no coincidence that regional transportation fees have become prominent at the same time that the state has reduced funding for transportation, said Max Neiman, Governance and Public Finance program director at the Public Policy Institute of California. “Since about 2000, the state has sent transportation back to the counties,” Neiman said. “The state has literally walked away from statewide transportation improvement finance.” In a number of areas, the fees complement revenue derived from a local transportation sales tax. But some counties have implemented regional impact fees even before voters have approved a sales tax. The fee programs typically are overseen by a council of governments or county transportation commission. They put together a nexus study that projects growth, identifies transportation needs, estimates expenses and then divvies up the total cost. Western Riverside County is a leader. Two years ago, Riverside County and 14 cities in the western end of the county began implementing the Transportation Uniform Mitigation Fee (TUMF) program. The fees, set by the Western Riverside Council of Governments (WRCOG), were originally pegged to raise about $2.5 billion over 20 years to help fund about $3.2 billion worth of improvements to arterial roads and intersections, freeway interchanges, bridges, rail grade separations and transit. A number of cities resisted imposing the fees at first, but WRCOG threatened to withhold revenue from a transportation sales tax if a city did not participate in the TUMF program. Consequently, every jurisdiction complied. Fees started off at $6,650 per house and $4,600 per multi-family unit, with varying per-square-foot amounts for nonresidential construction. Those fees increased by about 9% earlier this year, and builders have already paid more than $200 million in TUMF fees; however, program managers now say fees need to rise significantly. Rick Bishop, WRCOG executive director, said new growth forecasts generated locally and by the Southern California Association of Governments indicate an even greater need than originally projected. More growth combined with rapidly escalating construction costs mean that the $3.2 billion transportation program could actually cost more than $5 billion. “We have validated our existing network. But that same network costs about $1.5 billion more than we estimated three years ago,” Bishop said. His agency is recommending that the fee increase to $9,300 per house. A final decision by the WRCOG board is due this fall. The fee revisions have stirred up the development community, partly because builders say they have seen few benefits from the $200 million already paid. “Until such time that they can show that they can do more than just collect fees, we are wary of giving more fees to such an organization,” Borre Winckel, executive director of the Riverside County Chapter of the Building Industry Association of Southern California, told the North County Times. Next door, the San Bernardino Associated Governments (SANBAG) is moving forward with regional fees, but in a very different manner. The fees would be collected by 19 cities and the county, but the amount of the fee would be up to each jurisdiction. SANBAG went through the typical process of estimating growth, needs and costs, but then the agency divided up the total cost among each jurisdiction based on localized growth and the benefits received from the transportation program. The agency then assigned a number to the jurisdiction, ranging from $151.6 million for Ontario down to $2.9 million for Chino Hills. “We’ve come up with the overall amount they would have to raise. How they do that is up to them,” SANBAG spokeswoman Cheryl Donahue said. “They know their cities the best.” The SANBAG board was expected to give final approval to the program November 2. The $1.5 billion program would fund arterial road improvements, freeway interchanges and railroad grade separations. Cities have one year to start collecting revenue. Those that refuse to participate could lose other transportation monies, including revenue from a countywide half-cent sales tax, Donahue said. At the same time that SANBAG is advancing its “congestion management program,” the San Joaquin Council of Governments (SJCOG) is pushing a more standard regional traffic impact fee plan. It calls for fees of $2,500 per single-family house, $1,500 for a multi-family residence and levies ranging from 75-cents- to $1.25-per-square foot for nonresidential construction. Officials with SJCOG expect to make presentations to the county’s seven cities and the Board of Supervisors this month and during December in hopes that all jurisdictions will start collecting fees as early as January, said Michael Swearingen, SJCOG senior regional planner. “San Joaquin County is a region that is experiencing significant growth, and the regional transportation system is failing,” Swearingen said. Still, it has taken years to reach the point where a regional fee may be levied. SJCOG worked on the program for two years before abandoning it in 2003. Work restarted early this year and was successful this time because everyone who was interested had a say on fees, projects, implementation and administration, Swearingen said. “The elected officials, the development community, the Sierra Club — all the stakeholders — are on board from our perspective,” Swearingen said. “It’s been a gigantic consensus-building effort.” Although urban regions are at the forefront of regional transportation impact fees, rural regions also are charging developers for regional improvements. Merced County approved a regional fee program earlier this year, and even more rural western Nevada County has been collecting regional fees for four years. Neither county has a sales tax for transportation. The Nevada County Transportation Commission (NCTC) bases fees on peak p.m. hour trip generation, and then sets the amount per-trip based on the location of the development. Projects in and right around Grass Valley and Nevada City pay the most — $630 per trip. The agency is now considering revisions that would raise the per-trip amount and hike fees on outlying development, which appears to have a greater impact on Grass Valley and Nevada City traffic than expected, said NCTC Executive Director Dan Landon. “The community is increasingly agitated about congestion,” Landon said. “There is a little bit of unrest right now because people want to see things happen faster.” In other words, there is support for higher fees if they result in projects getting built quickly. However, regional transportation fees do not get universal acceptance. The Solano Transportation Authority, for example, considered a regional fee before dropping the idea earlier this year. “We felt the timing wasn’t good right now to look at impact fees,” said Dan Christians, assistant executive director of the Solano County agency. “We’re really focused on our sales tax measure.” A Solano County half-cent sales tax received 64% of the vote in 2004, and supporters plan to try again for two-thirds approval in 2006. The sales tax “doesn’t solve everything, but it would implement a lot of projects along the I-80/I-680/I-780 corridor. It would implement commuter rail along the Capital Corridor,” Christians said. Neiman, of the PPIC, said he understands the position of the COGs and county transportation agencies, but he lamented the lack of broader transportation planning efforts. “The longer-term, larger questions of tying transportation into other issues, like air quality and goods movement, sort of drift along unanswered,” Neiman said. “What you get is a near-term focus on congestion relief.” Contacts: Max Neiman, Public Policy Institute of California, (415) 291-4400. Rick Bishop, Western Riverside Council of Governments, (951) 955-7985. Dan Landon, Nevada County Transportation Commission, (530) 265-3202. Michael Swearingen, San Joaquin Council of Governments, (209) 468-3913. Dan Christians, Solano Transportation Authority, (707) 424-6075. San Bernardino Associated Governments: www.sanbag.ca.gov

A state appellate court has thrown out the environmental study for the Cal-Fed Bay-Delta Program. The Third District Court of Appeal found that the study failed to identify what water would be used to carry out the program, did not consider reduced exports of Delta water, and failed to provide known details of an "environmental water account." What appeared to doom the environmental study was the document's lack of specificity about the source of water for Cal-Fed's environmental programs and improved reliability for urban areas. The study — a "programmatic" environmental impact report for state purposes and an environmental impact statement for federal purposes that the court referred to as the PEIS/R — did not have to provide precise water sources, the court ruled. "However," the court ruled, "because the program is premised on such water being available, the PEIS/R must include an analysis of the impacts of supplying such water, from whatever source. "Without such analysis, a proper evaluation of the program and its alternatives and mitigation measures is not possible," Justice Harry Hull Jr. wrote for the court. "Cal-Fed has approved a program requiring large amounts of water to fulfill its objectives without analyzing the environmental impacts of supplying such water. This will not do." Cal-Fed directors will ask the state Supreme Court to review the case. In the meantime, though, the Third District's decision has added to the growing number of questions about Cal-Fed. The joint state-federal effort both to address the ecological health of the Delta and to provide a more assured urban water supply has spent $3 billion over the last decade, but has few large successes to show for the expense. Many people inside and outside of government are questioning the entire program's structure (see CP&DR Environment Watch , October 2005). In 1994, 18 federal and state agencies with management or regulatory authority over the Delta signed a Bay-Delta accord. After six years of study, negotiation and planning, the state resources secretary in August 2000 certified a programmatic EIS/EIR and adopted the record of decision formally approving the 30-year Cal-Fed program. Naturally, litigation ensued in both state and federal courts. The chief opponents are agricultural interests, Delta irrigation districts and the Regional Council of Rural Counties, which comprises 28 Northern and Central California counties that receive most of the state's rainfall. Superior courts in Sacramento and Fresno counties upheld the environmental study and other challenged aspects of Cal-Fed. The Third District consolidated the state litigation and then overturned the lower courts on California Environmental Quality Act (CEQA) grounds. Justice Hull's 244-page decision is remarkably detailed. The ruling starts with a lengthy explanation of the state's plumbing system and Southern California's efforts to secure water from the Colorado River, Owens Valley and Mono Lake. The court addresses the legal and environmental issues surrounding the existing system. Hull then moves to the heart of the matter — whether the environmental study satisfied CEQA. One issue that surfaces repeatedly in the court's CEQA discussion is the level of detail required in a programmatic EIR, an issue that public agencies, lawyers and judges have struggled with for decades. The court clearly thought the environmental study should have been more specific about where the program would get its water. Under Cal-Fed's preferred alternative, environmental restoration efforts would need an additional 980,000 acre-feet of water in the first year alone. Additionally, exports from the Delta to Central and Southern California would increase by anywhere from 250,000 acre-feet to 900,000 acre-feet annually depending upon the amount of new storage developed and rainfall. Agricultural interests fear that most of the water will be diverted from farms. In defending the environmental study, the state argued that a first-tier EIR for a program needed only to recognize that water must be supplied and to identify potential sources. The state said the EIR described the potential sources in detail. But the court found such detail lacking. The EIR says the water will come from "willing sellers along the pertinent rivers and new storage," but goes no further, according to the Third District. "The PEIS/R does not provide any basis for the estimates of water that will be made available from willing sellers along the various rivers," Hull wrote. "On the contrary, a response to comments states that ‘the amount and source of water that will be transferred by willing sellers is not currently quantifiable.' Nor does the PEIS/R identify what new storage is contemplated." "In light of the overarching importance of water to the success of the Cal-Fed program, merely listing potential sources of water, indicating that the ultimate source determination will be made later, and deferring CEQA analysis of the need to provide water to the program violates the PEIS/R's basic informational purpose," wrote Hull, who noted that new water storage projects are very difficult to develop. "The PEIS/R attempts to forestall the inevitable battle over water allocation and storage, and the effects of such on the environment, by leaving the source of program water undefined." After dealing with water sources, the court then moved onto what might be the most controversial part of the ruling — an analysis of project alternatives. Under CEQA, an environmental study must discuss a range of alternatives for the proposed project or the project's location. The opinion provides a lengthy review of how Cal-Fed developed dozens of alternatives that ultimately where whittled down to four contained in the EIR. None of the four contemplated reduced export of Delta water because, the state argued in court, reduced exports would not meet all of Cal-Fed's goals, specifically a more reliable water source for Southern California. "But," the court ruled, "Cal-Fed's rejection of a reduced exports alternative is premised on the false assumption that, for an alternative to be feasible, it must meet all of the program's goals." Cal-Fed and the EIR assume that the program must provide for ongoing population growth, especially in dry Southern California. But the court refused to accept this approach as a given. " f there is no water to support the growth, will it occur as projected?" Hull posited. "Population growth is not an immutable fact of life. Stable populations have been established in such states as New York, Pennsylvania, Connecticut and Rhode Island. Inflow of new residents to California continues to exceed outflow because conditions in the state are conducive to population growth. One aspect of these conditions is the availability of water. However, as the state reaches the limit of available water and must seek other sources such as desalination, water will become more expensive to obtain and California's appeal will lessen." "Cal-Fed appears not to have considered, as an alternative, smaller water exports from the Bay-Delta region which might, in turn, lead to smaller population growth due to the unavailability of water to support such growth," the court continued. "Taking an assumed population as a given and then finding ways to provide water to the population overlooked an alternative that would provide less water for population growth leaving more for other beneficial uses." In the later reaches of its opinion, the court rejected the EIR's description of the environmental water account (EWA), which is intended to provide more water for fish. The court determined that Cal-Fed participants — one month before EIR certification — approved a framework that detailed how the EWA would work. The EIR did not contain this information but should have, the court ruled. The Case: In re Bay-Delta Programmatic Environmental Impact Report Coordinated Proceedings , No. B175020, 05 C.D.O.S. 8858, 2005 DJDAR 12079. Filed October 7, 2005. The Lawyers: For California Farm Bureau Federation: Brenda Southwick, (916) 561-5660. For Central Delta Water Agency: Dante John Nomellini Sr., Nomellini, Grilli & McDaniel, (209) 465-5883. For Regional Council of Rural Counties: James Wagstaffe, Kerr & Wagstaffe, (415) 371-8500. For California Resources Agency: Tom Greene, attorney general's office, (916) 445-9555.

Rep. Richard Pombo has been trying to revise the federal Endangered Species Act (ESA) for nearly a decade, having been handed that seemingly Sisyphean task by the GOP leadership shortly after the party took control of Congress in 1994. The Tracy Republican has never made much headway in what he calls an effort to “improve”— critics typically substitute “cripple” or “gut” — one of the nation’s key environmental laws. His 11 previous efforts were stymied either by a certain White House veto or opposition by more moderate Republican members of Congress. This year, however, the stars seem to have aligned for Pombo, who now chairs the House Resources Committee and has strong support from the Bush Administration and a larger Republican majority in Congress. In September, with startling speed, the House approved Pombo’s 12th ESA rewrite on a 229 to 193 vote, sending the bill to an uncertain fate in the Senate. Pombo and the Resources Committee began laying the groundwork for the legislation earlier this year, issuing a series of “reports” — typically authored by Pombo or his staff — on the ESA’s alleged shortcomings. He also launched a multi-state road show, conducting field hearings at which invited speakers told tales of ESA-related woe. After lawmakers returned from their summer recess, Pombo moved swiftly. He introduced the Threatened and Endangered Species Recovery Act (HR 3824) on September 19; the Resources Committee approved the bill four days later. It went to the floor of the House on September 29, with 90 minutes allowed for debate. By the end of business that day, House lawmakers had approved the bill. The bill Pombo pushed through the House was not as draconian as environmental activists had feared. It would, however, make several significant changes in the 1973 law. The most far-reaching of these is the elimination of the requirement that the federal government designate critical habitat for a species when it is listed as threatened or endangered. That has long been a Pombo bête noire, a provision he argues is tantamount to an unconstitutional taking of private property. More than 10 years ago, during testimony before a Senate subcommittee, he offered a reason for his antipathy toward that aspect of the ESA: His family land had been stripped of its value when the U.S. Fish and Wildlife Service (USFWS) declared it critical habitat for the San Joaquin kit fox. Inconveniently for Pombo, however, the agency had done no such thing, and he had to backtrack on his personal tale. But if Pombo has had no direct experience with the ESA’s limitations on private property, plenty of his constituents have. It’s probably not a coincidence, therefore, that the critical-habitat repeal and other provisions in his bill read like a wish list from the agricultural and building industries that play dominant roles in his Central Valley district: a blanket exemption from ESA regulation for pesticide use; a mechanism by which to force the government to pay private landowners for the cost of complying with the ESA or to reimburse them for reductions in property value as a consequence of species protections; and a 180-day deadline for the federal government to respond when a property owner proposes an action that might harm a listed species. Other provisions less directly tailored to Central Valley interests would allow the secretary of interior to unilaterally decide what scientific data to use in determining a species’ status; authorize the president to suspend all provisions of the ESA in cases involving disasters and national security; and establish an undefined “alternative” to the formal consultation process by which federal agencies are required to check with the appropriate wildlife service before issuing permits. In his opening statement during the brief floor hearing on HR 3824, Pombo repeated his oft-made assertion that the ESA has a success rate of less than 1%, as only 10 of the nearly 1,300 species listed since the act became law have recovered sufficiently to be removed from the list. Although well-intentioned, the law isn’t working and needs to be fixed, he argued. “Now we all know it takes time to recover endangered species, but after three decades of implementation, do these sound like the statistics of a successful law? Of course not,” Pombo said. The bill won plaudits from the National Association of Home Builders, which called it “a common-sense, bipartisan approach to update and improve the law.” The Competitive Enterprise Institute (CEI), a think tank that champions free-market policies and opposes government regulation, was similarly approving, arguing that compensating property owners for species protections is long overdue and will enlist them in the effort to save imperiled wildlife. “The ESA threatens the constitutional rights of all Americans and has violated the rights of countless thousands of landowners,” said Myron Ebell, CEI director of international environmental policy. The bill may not win such overwhelming praise in the Senate. Rhode Island Sen. Lincoln Chaffee, a moderate Republican with a green constituency, is working with Sen. Hillary Clinton (D-New York) on a bill that is unlikely to look anything like HR 3824. Chaffee is reportedly worried about the high price tag associated with the landowner compensation provisions in Pombo’s bill, and other senators are likely to share the concern. The Congressional Budget Office estimates compliance with HR 3824 would require nearly doubling the USFWS budget and boost spending by $2.6 billion over four years. Other critics says Pombo’s bill would eviscerate bedrock environmental protections. “This bill takes a wrecking ball to our nation’s most important wildlife protection law,” said Kieran Suckling, policy director at the Center for Biological Diversity. That group has had notable success using litigation to force USFWS to designate millions of acres of critical habitat in California for such species as the red-legged frog, peninsular bighorn sheep and arroyo southwestern toad. The proposed elimination of critical habitat designation has stirred particular outrage because many experts consider habitat loss the primary reason species become threatened with extinction. In an article in the April issue of the journal BioScience, Suckling and two co-authors (conservation biologist Martin Taylor and Cornell law professor Jeffrey Rachlinski) presented an analysis of federal data that found species were more likely to be recovering if critical habitat had been designated. A peer-reviewed article in Ecology Letters in September, written by Timothy Male and Michael Bean at Environmental Defense, found no such correlation, but did conclude that the species showing the most improvement were those that had been listed the longest and had received the most funding for recovery. Contacts: U.S. Rep. Richard Pombo, (202) 226-9019. Center for Biological Diversity, (520) 275-5960. National Association of Home Builders, (202) 266-8252.

Riverside is slowly inching into implementation of a redevelopment project at the city’s western gateway. The city recently resolved litigation with Riverside County over the boundaries of the project area, and some small infrastructure projects are moving forward. However, a lawsuit filed by a group of project area residents is pending. Until it is resolved, full implementation of the redevelopment plan must wait. The fight over the La Sierra/Arlanza redevelopment project is a familiar one in California. City officials insist that redevelopment tools — chiefly, tax-increment financing — are necessary to improve a run-down area. Opponents counter that the area as a whole is neither blighted nor predominately urbanized, two requirements for creating a redevelopment project area. “It’s been ignored almost completely since it came into the city,” Councilman Steve Adams said of the project area, much of which the city annexed during the mid-1960s. “It’s the lowest socioeconomic area of the city. It has the highest crime rate in the city.” But a group called Rural Residents and Horse Owners of Riverside sued the city last year, shortly after adoption of the redevelopment plan. Rural Residents argues that the city is using redevelopment simply to maximize revenue. “It’s not a physical or economic liability. There’s a lot of horse property there, and the city calls that blighted,” said C. Robert Ferguson, attorney for Rural Residents. “It’s a boondoggle.” Ferguson likened Riverside’s project area to one in the City of Upland that an appellate court rejected three years ago. The court blocked Upland’s redevelopment project when the court ruled that a large project subarea was not “predominately urbanized.” The area in question had been used for a rock quarry, a garbage dump and a flood control siltation basin ( , 99 Cal.App.4th 424; see , August 2002). Riverside treats the large-lot residential areas the same way Upland treated the gravel pit at the time, said Ferguson, a winning attorney in Graber. He recalled that Upland contended the old gravel pit would never be reused without redevelopment assistance. However, without redevelopment, the gravel pit is now a lake surrounded by upscale homes, he said. Much of the area in the La Sierra/Arlanza project area is half-acre to 5-acre lots zoned “rural residential.” To Ferguson, that’s telling. “If it’s zoned rural, how can it be urban? That goes without saying,” he argued. The county also questioned whether 80% of the project area is urbanized, the minimum required under state law. To settle the county’s litigation, the city in October removed about 1,300 acres from the project area. The detached area is mostly undeveloped; an upper-end housing development of nearly 600 units called Rancho La Sierra is proposed for the site, along with dedicated open space. The detachment still leaves approximately 8,000 acres (12 1/2 square miles) in the project area. The city estimates it will receive about $600 million in tax increment during the lifetime of the redevelopment project. La Sierra/Arlanza is the city’s seventh redevelopment project area. Adams, who was not on the council when the city first drew up project area boundaries, conceded the city “took too big a bite” at first. The remaining territory belongs in a redevelopment project, he said. Included in that territory is the Galleria at Tyler. Anchored by Nordstrom, Robinsons-May, Macy’s and JC Penney, the Galleria is the Inland Empire’s largest indoor shopping mall. The city, its redevelopment agency and mall owner General Growth have signed an agreement for publicly subsidized improvements at the mall, said redevelopment Project Manager Wendy Holland. However, those improvements are stalled as long as litigation is pending, she said. Adams admitted that the redevelopment project needs the Galleria’s tax revenue. But, he said, the publicly subsidized improvements will strengthen the mall as a tax generator and employer. And, he quickly pointed out, the revenue will help the city improve the low-income housing that surrounds the mall. The project area also encompasses the 73-acre Turner Riverwalk project, a residential and office project that AJ Turner is developing just off the 91 Freeway. Riverwalk’s small-lot housing units have nearly tripled in value since they were built two years ago, and development of the 1-million-square-foot office component is proceeding faster than expected. The city’s only contribution to Riverwalk development has been some road work, according to Adams. “It’s been a great project that started the ball rolling in that area,” Adams said. Redevelopment detractors point to Riverwalk and the mall as evidence that La Sierra/Arlanza is not blighted. “I guess Nordstrom is getting a little dirty,” Ferguson deadpanned. Adams contended that only a handful of complainers are standing in the way of progress, and he said that many property owners and businesses see the value of redevelopment. Half of the project area lacks such basics as sidewalks, curbs, gutters and streetlights, he noted. “Unless we take this action, it’s going to remain depressed. It’s going to be the dumping ground for every low-mod housing project,” argued Adams, whose ward includes La Sierra/Arlanza. Instead, the area should be a vital, western gateway to the city, he said. To help assuage some opponents, the City Council earlier this year agreed not to use eminent domain to take owner-occupied single-family residences in the project area, and the council even added this provision to the redevelopment plan. However, countered Ferguson, the city could change its mind on eminent domain in the future. And he questioned the purpose of installing sidewalks in a rural residential area with lots of horses. No trial date for the lawsuit has been set yet. Contacts: Steve Adams, Riverside City Council, (951) 826-5991 Wendy Holland, Riverside Redevelopment Agency, (951) 826-5947. C. Robert Ferguson, attorney for Rural Residents and Horse Owners of Riverside, (909) 482-0782.

A developer that has fought a variety of government fees levied by numerous jurisdictions had its day in front of the state Supreme Court in October. But during an hour of oral argument, California’s high court justices offered few hints of how they might rule. “I certainly find this to be a very technically difficult case,” Justice Joyce Kennard commented at one point. During its first-ever session in Redding, the state Supreme Court heard from Barratt American attorney Walter McNeill and California Building Industry Association attorney David Lanferman, who argued that the City of Rancho Cucamonga’s build permit and plan review fees were excessive and that Barratt American was due a refund. Tilden Kim, representing the city, and Jeffrey Dunn, representing the League of California Cities and the California State Association of Counties, contended that Barratt American was relying on the wrong statute and had challenged the fees after the statute of limitations expired. Barratt American has made a habit of suing local governments over fees. The English company often argues that fees do not reflect the cost of providing service, are actually illegal taxes and were improperly adopted. A particular target has been jurisdictions that use building valuations to determine fees. The company has had limited success in court, but it has forced some jurisdictions to change the way they calculate building permit fees. The case at the Supreme Court involves a 123-unit Barratt American subdivision in Rancho Cucamonga. In 2002, the developer sued the city, arguing that the fees and fee schedule were improper because they were not based on the cost of providing service. Barratt American had paid the fees under protest and in court demanded a refund of $143,000. Under its fee schedule, the city charges $555 for a building permit for construction valued at up to $100,000. The city charges an additional fee of $2.50 for every $1,000 in building value over $100,000. The plan review fees are a percentage of the building permit fees. The developer presented numerous arguments to a San Bernardino County Superior Court judge and to the Fourth District Court of Appeal, but both courts ruled for the city (see , July 2003). At the state Supreme Court, Barratt American attorney McNeill said the company was not attacking the validity of the fees or the city’s fee ordinance. Rather, the company wanted the city to reduce its fees by $3 million in excess revenue that the city collected over a period of years, to refund Barratt American $143,000 and to provide an annual audit of the fee revenues and expenditures. With regard to the refund, McNeill argued that Government Code §§ 66020 and 66021 provide for refunds of “any kind of payment” related to approval of a development project. Justice Kennard responded that § 66020 refers generally to development fees, while § 66016 addresses building permit fees. Why, she asked, should the general statute apply when there is a statute specifically for building permit fees? The CBIA’s Lanferman said that § 66016 provides only a prospective remedy for excessive fees — namely, lower fees in the future. But, he argued, due process requires a retrospective remedy, and § 66021 provides for it. “If the only remedy is the possibility that the city may review its fees from time to time … that is no remedy for the fee payer who is overcharged now,” Lanferman told the justices. “The fee payers don’t consider themselves interchangeable.” Kim, the city’s attorney, said that Barratt American and the CBIA were actually attacking the wisdom of the statutes, not the city’s application of the laws. That line of reasoning prompted Kennard to ask whether the lack of a possible refund presented an “inherent unfairness” to Barratt American. But Kim said any unfairness is a question for the Legislature. Government Code §§ 66014 and 66016 apply here because they speak directly to building permit fees — not to “development fees” that are collected specifically for public improvements related to a development, he argued. Kim rejected the notion of annual audits, saying that state law does not require them and that they would be impractical because developments often take multiple years to complete. Kim and Dunn also argued that Barratt American filed its challenge too late. The city first adopted the fee scheme in question in June 1999, and readopted it with only one typographical change in January 2002. The 120-day statute of limitations started to run in June 1999, but Barratt American filed its lawsuit in May 2002, Kim said. “There is no question that this is a developer who waited too long to challenge this city’s fee,” contended Dunn, who said the statute of limitations issue was of great concern to local governments. But McNeill countered that the January 2002 action was more than a mere recodification. The city went though the entire fee-justification process, and Barratt American filed within 120 days of the city’s decision, he said. The court is due to issue a decision by about the first of the year. The case is , No. S117590.

With all the talk these days about New Urbanism in California these days, it is sometimes easy to overlook the old urbanists. These were planners of the 1950s and 1960s who worked in the context of urban renewal and Modernist architecture, trying to fight a rear-guard action against the rapid suburbanization of the time. These planners worked mostly in very urban locations –San Francisco, New York, Boston, Philadelphia – because these were the only places where a discussion about urbanism could take place. The results today sometimes seem mixed, but there are important lessons for California as suburbs become more urban. Of all these planners, none had a more profound impact than Edmund Bacon of Philadelphia, who died in October at the age of 95. By the time I actually met Ed Bacon in person, he was already in his late 80s, cranky and quirky. He had just read my book The Reluctant Metropolis, which reminded him that I had written a magazine article many years before that he had liked. He called me up out of the blue one day to discuss whether I should write – or help write – a biography of his life. I was flattered that this legend of urban planning contacted me and agreed to meet with him on my next East Coast trip. Only later did I realize that I was not alone. Ed Bacon had flattered any number of writers over the years with exactly the same offer, and no one had ever made a writing deal with him. So I visited him at his Rittenhouse Square house in Philadelphia. He proved to be chatty, charming, strongminded – even obsessive. The centerpiece of the house was an elaborate model on the third floor of his vision for how to improve Independence Mall. Characteristically incensed that the city’s planners had proposed a plan he didn’t like, he built the model at his own expense to prove his idea was better. He had fought the city’s plan so hard that the planners of the day regarded him to be cantankerous almost to the point of being a gadfly. This was classic Bacon. Bacon was born in Philadelphia in 1910 and was trained as an architect in the Beaux Arts style at Cornell during the late 1920s – “I was there before the Modernists arrived,” he once told me. His zenith came during the 1950s and ’60s, when as executive director of the Philadelphia Planning Commission he engaged in the most successful urban revitalization efforts of the era. He razed eight square blocks around Independence Hall to create a more formalistic setting, reviving the neighboring historical neighborhood of Society Hill in the process. He tore down the “Chinese Wall” – a large railroad bridge next to Philadelphia City Hall – to make room for the Penn Center office complex. And he rejected architect Louis Kahn’s starkly modernist plan for the downtown. Bacon had a way of coming across as naïve, but he accomplished things no one so naïve could have done. He was part of a political reform movement that pulled Philadelphia out of the machine era; and he helped rewrite the city charter in a way that gave the Planning Commission – and, hence, him – more power than planners in almost any other city had. He once told me that he did it by writing policies that would kick in far in the future, beyond the time horizon of all the politicians. More than anything, however, he succeeded because he had an artist’s vision and a monarch’s will. His vision was the city as the experience of moving through space – a path or a shaft – and most of his plans used this idea as the focal point. His idea of an implementation technique was to use the force of a will so strong that he seemed unable to separate Philadelphia from himself. The first chapter of his classic book Design With Cities is titled “The City as an Act of Will.” In our first conversation at his house, he suggested that, having written a book about Los Angeles called The Reluctant Metropolis, I should now write a book about Philadelphia called The Acquiescent Metropolis. “Acquiescent to whom?” I asked. He looked at me in disbelief. How could I not know? “Why, to me, of course,” he replied. Tethered to such a strong personal vision and a strong personal will, Bacon did not seem to notice or care about the city’s changing demographics, or the growing significance of race and class in planning discussions, and eventually this made him seem old-fashioned and out of date. Bacon’s decline began in the mid 1960s, when he went toe-to-toe with advocacy planners such as Paul Davidoff over the proposed construction of a freeway on the edge of Society Hill. The freeway would have required the demolition of the black neighborhood adjacent to increasingly tony Society Hill. Bacon, who taught at the University of Pennsylvania’s architecture school, favored the freeway; Davidoff, who taught in the Penn planning school, opposed it. Davidoff won and Bacon lost, thus setting off a trend in advocacy planning and a corresponding decline in physical planning that lasted until the New Urbanists emerged a quarter-century later. (Another side effect of this battle was that my brother, who for many years ran a retail beer store on Bainbridge Street called “Society Hill Beverage,” had to stock an extremely wide range of beers to meet the diverse market demand in the surrounding neighborhoods.) Even today, 40 years later, almost all planning students read Davidoff’s classic article, “Advocacy and Pluralism in Planning.” But not very many of them read Design of Cities. The New Urbanists revived Bacon’s reputation to a certain extent; Design of Cities is on every New Urbanist reading list because Bacon’s physical determinism and his formalistic design impulses jibe with New Urbanist thinking. Oddly, however, even the New Urbanists don’t really talk all that much about Bacon’s accomplishments. I think that’s because most of his urban design ideas, such as Penn Center, were implemented during the height of the Modernist era, and New Urbanists have a hard time admitting that good urban design can be created in a Modernist style. But Penn Center is good – not perfect, but an excellent example of experiencing a city by moving through space, constructed at a time when such accomplishments were rare. It stands as a perpetual reminder that Modernist architecture and bad urban design don’t always go hand in hand. I once asked Bacon why, given the force of his will and the breadth of his vision, he went along with Modernism in revitalizing downtown Philadelphia. And the great idealist gave me a surprisingly pragmatic answer. “I wouldn’t have chosen it,” he said, “but it was what I had available to me at the time.” I went to planning school at the height of the advocacy planning era and consequently gained almost no formal education in design. But I spent a lot of time in Philadelphia during the ’70s, before I moved to Los Angeles, and so in a way I learned my urban design inside Bacon’s mind. Many years later, when urbanism old and new came back into style, I was thankful that that I had this education to fall back on.

The City of Bakersfield has proposed a 112-square-mile expansion of its sphere of influence, the first step toward a major expansion of the southern San Joaquin Valley city of nearly 300,000 people. City officials say that the proposed sphere expansion, which would cover nearly as much land as the current city, is simply a logical step in Bakersfield’s inevitable growth within a large metropolitan planning area. Kern County officials, thus far, are not opposing the move. In fact, there appears to be little in the way of major opposition locally. Still, the shear size of the proposal — 71,576 acres — has generated outside interest. “I think it’s one of the largest sphere of influence applications a LAFCO has ever seen,” said William Chiat, executive director of the California Association of LAFCOs, or CALAFCO. Actually, although the City Council approved the sphere application on October 12, the Kern County LAFCO had not yet received the application as of late October, and Executive Officer William Turpin was reluctant to discuss Bakersfield’s proposal. Both the Department of Conservation and the state Attorney General’s office appear to be paying attention to the city’s proposal, which could ultimately urbanize tens of thousands of acres of farmland. If the sphere were approved and the city later annexed the area, Bakersfield, a city with some of the worst air pollution in the country and minimal public transit, would stretch over nearly 30 miles, from Interstate 5, across Highway 99, to the mouth of the Kern River canyon. City officials offer no apologies for their proposal. The area the city is eying lies entirely within the 408-square-mile region covered by the Metropolitan Bakersfield General Plan, a joint city-county plan for development of Kern County’s largest urban area. “This is step one of a good, long-term plan,” Bakersfield City Councilman David Couch said. “It doesn’t make a lot of sense to me for our sphere not to be as big as the metropolitan planning area. If our sphere is not the same as that, we run into development in the county that is not at the same standards as in the city.” Bakersfield Development Services Director Stanley Grady said that — based on projected growth rates and a population density of 2,500 people per square mile — the proposed sphere area would accommodate 280,000 people, or about 20 years worth of growth. A 20-year planning horizon is not uncommon, he said. The proposed sphere area’s buildout “is well within the range of what you should be planning for,” Grady said. “You don’t want to wait until you’re 5 or 10 years out to start planning for the infrastructure you’re going to need.” In fact, the city’s proposal is not out of character with the metro general plan. In a report to the Board of Supervisors, Kern County Planning Director Ted James wrote, “After reviewing Bakersfield’s SOI proposal and conferring with Bakersfield officials, the County Administrative Office and Planning Department jointly conclude the proposed City of Bakersfield planned expansion area is consistent with the intent of the Metropolitan Bakersfield General Plan.” By almost any measure, Bakersfield is one of the state’s fastest growing cities. According to the Department of Finance, the Kern County seat added 13,222 people in 2004 — more than any other city of fewer than 300,000. The city’s population has increased by 70% since 1990. In recent years, the city has permitted 4,000 to 5,000 housing units a year, and billboards from the nation’s largest builders rise all over town. Tens of thousands of units are planned. Exactly what is driving the boom is a bit unknown. Real estate experts say as many as one-third of new houses are being purchased by speculators. With a median price of less $300,000, Bakersfield remains one of the least expensive markets in the state. There also is plenty of anecdotal evidence that the inexpensive real estate is drawing Southern California retirees who are cashing out of pricey urban areas, and commuters to Los Angeles. The tens of thousands of jobs in Santa Clarita are only an hour’s drive away — when conditions are clear — from the south end of Bakersfield. Chiat, of CALAFCO, said he would expect the environmental and agricultural communities to object to any sphere of influence proposal as large of Bakersfield’s. However, there is little political opposition to urban growth in Bakersfield. “There is not a lot of public involvement here,” said Lorraine Unger, who, with her husband, Arthur, heads the Kern-Kaweah Chapter of the Sierra Club. Lorraine Unger said she monitored local government public hearings for years, and “I used to be the only member of the public at the meetings.” Arthur Unger said that Bakersfield’s growing population is self-selected to be apathetic. “Who comes here from Los Angeles? The person who says they want the most house per dollar, the easy traffic and he’ll take his chances with the smog,” Arthur Unger said. Grass-roots efforts to push “smart growth” in Bakersfield appear to have waned in recent years. Rather than try to block growth, the local Sierra Club cuts deals with developers. In exchange for a developer’s paying $1,200 per house to fund air pollution mitigation, the Sierra Club agrees not to sue over a project’s environmental review, explained Gordon Nipp, a local activist. The money goes to a private foundation that will fund things such as cleaner school buses. The idea is prevent housing development from making air quality worse, explained Nipp. Although some have complained of “environmental extortion,” developers of 16 projects have agreed to pay the $1,200-per-house fee to stay out of court. Farmers also appear to be presenting little resistance to the sphere proposal. James said the owners of thousands of acres of land that have been covered by the Williamson Act — which provides tax breaks to farmland owners who agree not to develop their property — have canceled their contracts in recent years. Farmland that sold for $4,000 an acre in recent memory is now fetching $120,000 or more per acre, James pointed out. Tellingly, one of the recent Williamson Act cancellations was filed by James Borba, who owns about 2,400 acres off Interstate 5 and within the proposed sphere expansion. Borba fought very hard to open a 14,000-cow dairy on the property only a few years ago. The Bakersfield California reported in September that Borba is working on a deal with developer D.R. Horton. In many places, the county would oppose a large sphere of influence expansion into unincorporated territory — but not in Kern County, where the Board of Supervisors is keeping the county out of the urban development business. The county is starting to use the issue of sewage more aggressively to limit growth in unincorporated areas. There is little sewer service outside the Bakersfield city limits, and the county is in the process of increasing the minimum parcel size that can have a septic system from 1 acre to 3 acres. “We are not in the business of providing sewer,” James said. “We send landowners to the city.” Indeed, the city has more than 50 annexation applications at LAFCO, and the county has more than 20 general plan amendment applications, mostly northwest of the city limits. James recommends a comprehensive look — and one large environmental impact report — for all of the activity, including the various applications and the sphere of influence proposal. He also would add an update to the metropolitan general plan, even thought it was last revised only three years ago. “We’re looking at urbanizing a big area, but it’s happening piecemeal right now,” James said. “We’re missing something if we don’t update all of this at one time. “Quarter-acre lots are the king around here,” James continued. “Shouldn’t we be talking about density? How can we get more efficient land uses?” Turpin, the local LAFCO officer, noted there is 70,000 acres of undeveloped land within Bakersfield’s current 207-square-mile sphere of influence. But Grady, the city’s chief planner, has little patience for such discussions. The city’s newer areas have densities of 400 more people per square mile than the city’s former average, he noted, and the city has approved residential lot sizes as small as 4,500 square feet. The community has chosen to develop at low to moderate densities, and comparisons with more crowded coastal areas are unfair, he contended. “There’s not a lot of infill left to do in Bakersfield,” asserted Councilman Couch. “We have some redevelopment projects downtown. And we have some county islands, but they are built out.” Loss of farmland is not a factor, added Grady, who contended there is more productive farmland now than 10 years ago. “We figure if there’s a statewide problem, then the state should be addressing it,” he said. The loss of farmland would appear to be a good subject for an environmental impact report on the sphere expansion. However, the city, saying the sphere change is merely paperwork, is proposing to use a negative declaration. Further environmental review would be conducted when there is a proposal for annexation, Grady said. Whether LAFCO will accept that argument is unknown, and Turpin declined to speculate. But CALAFCO’s Chiat said, “I can’t imagine that Kern LAFCO would adopt a sphere like that without a pretty substantial environmental review.” Coincidentally or not, Gov. Schwarzenegger in October signed a bill (SB 967, Florez) that guarantees Bakersfield has a representative on LAFCO. Contacts: Stanley Grady, Bakersfield Development Services Department, (661) 326-3733. David Couch, Bakersfield City Council, (661) 326-3767. Ted James, Kern County Planning Department, (661) 862-8600. William Turpin, Kern County Local Agency Formation Commission, (661) 716-1076. Arthur and Lorraine Unger, Kern-Kaweah Chapter, Sierra Club, (661) 323-5569. William Chiat, California Association of Local Agency Formation Commissions, (916) 442-6536.

Gov. Arnold Schwarzenegger ended the 2005 legislative year by vetoing one-quarter of the approximately 900 bills that lawmakers sent him. Among the bills that the governor rejected was a zoning bill targeted by the League of California Cities. Assembly Bill 712 (Canciamilla) would have tightened the standards for findings necessary for density reductions and extended similar “no-net-loss” limitations to residentially zoned sites not identified in a housing element as required for meeting a jurisdiction’s fair-share housing mandate. The bill further would have extended a sunset on a provision allowing for attorney fees when someone sued a jurisdiction for violating the no-net-loss law. It was the attorney fee provision to which both the League and the governor objected. “Providing incentives for third parties to sue local governments over housing decisions, as provided in this bill, is inappropriate and does not build any additional housing,” Schwarzenegger said in his veto message. “The threat of lawsuits diminishes flexibility and creativity when designing a community.” The Republican governor also vetoed SB 940 (Torlakson), which addressed prevailing wage rates set by the Department of Industrial Relations (DIR) for residential projects. Under state law, many subsidized housing projects are required to pay prevailing wages to construction workers. The DIR sets the rates based on wages reported under contracts for commercial projects (see , May 2005). Affordable housing developers insist that residential projects it takes DIR as long as six months to determine rates for certain residential construction trades. Meanwhile, rates for commercial trades are immediately available. The Torlakson bill would have required DIR to replicate for residential construction trades the method it uses for setting commercial construction trade wage rates. The bill, however, was co-sponsored by organized labor — and this governor is proving no friend of unions. In his veto message, Schwarzenegger said DIR “has less than two-thirds of the information it needs for residential rate determinations” and that the bill “does nothing to remedy this deficiency.” Democratic legislators are likely to take another run at the issue next year. It appears Democrats may also get even more serious about flood control legislation in 2006. In addition to Assemblyman John Laird’s push for a new Central Valley flood control agency and a new funding source, Senator Dean Florez (D-Shafter) said in October that he would introduce legislation to alter who is appointed to the state Reclamation Board. In late September, only days after the Reclamation Board decided to start commenting on the environmental review of every development proposed in a Central Valley floodplain, the governor replaced the entire board with seven new appointees who appeared to be far friendlier to development interests. “It definitely raises alarms that when this board took a stand against urban development in floodplains, the board was removed,” Florez said. Florez, chairman of the Governmental Organization Committee, said he would consider requiring that board appointees be experts in geology, hydrology or related fields. He also said he would consider giving the Reclamation Board “greater say” over local general plans. As for legislation that did pass this year, the governor approved: • SB 253 (Torlakson), which clarifies what fees may be charged to cover the cost of the regional housing needs allocation process. • SB 326 (Dunn), which permits by-right development of duplexes, triplexes and four-plexes. • SB 435 (Hollingsworth),which makes clear that mobile homes, certain senior citizen projects and limited equity cooperatives qualify for affordable housing density bonuses. The bill also lets cities recapture subsidies provided to such projects. • SB 575 (Torlakson), which strengthens anti-NIMBY law relating to affordable housing projects and prevents cities and counties from rejecting or conditionally approving a project unless the jurisdiction has met its fair-share housing needs for the planning period. • SB 950 (Torlakson), which increases the types of housing that are considered “at risk” for the purpose of awarding tax credits. • SB 1087 (Florez), which requires water providers to reserve capacity for affordable housing projects. • AB 691 (Hancock), which allows local governments to designate existing specific plans or redevelopment plans as “transit village plans.” • AB 1200 (Laird), which requires the state by 2008 to evaluate the potential impacts of a Sacramento-San Joaquin River Delta levee failure and provide options for addressing the risks. • AB 1233 (Jones), which requires that any portion of a local government’s share of a regional housing need that is not met during one planning period must be carried forward to the next round of fair-share housing allocations. A city or county would be required to zone land to provide for the fair-share that gets carried forward. • AB 1390 (Jones), which expands enforcement of a redevelopment agency’s low- and moderate-income housing requirements, and amends certain replacement and rehabilitation housing requirements. The legislation establishes a 10-year statute of limitations for suing redevelopment agencies for violating housing mandates. • AB 1746, which extends the deadline for Local Agency Formation Commissions to update their spheres of influence to January 1, 2008. The governor vetoed: • SB 820 (Kuehl), which would have required greater reporting of groundwater extractions, required the Department of Water Resources to analyze State Water Project delivery prospects under a variety of conditions, and required preparation of agricultural water management plans similar to urban water plans. Schwarzenegger called the bill “a significant burden on property owners.” • AB 1747 (Wolk), which would have permitted the Rumsey Band of Wintun Indians to become a member of a joint powers authority that could purchase the 17,000-acre Conaway Ranch, possibly by eminent domain. Local governments in Yolo County fear the ranch could be developed or its water rights sold, and the Rumsey Band has offered to help finance the acquisition. The governor said that allowing a tribal government to exercise public power “diminishes public accountability and control.”

One of the most interesting phenomena of the urban-infill craze of recent years has been the conversion of industrial corridors, such as riverfronts and railroad tracks, into middle-class housing, “creative” office space and touristy retail. Places that earlier generations had hidden from view because of their filth and lack of gentility are now becoming civic ornaments. Introverted industrial zones are becoming extroverted public playgrounds. Former industrial corridors are the locales of new parks, museums or other cultural uses, as well as profitable homebuilding. Developers who seek out opportunities in urban infill, however, are looking for trouble. In contrast to the comparative simplicity of greenfield development, where the suburban builder has a free hand in laying out streets and buildings, the infill developer must contend with contaminated soil, historic buildings, antiquated infrastructure and frequently intense political pressures. Infill developers must also navigate between competing goals, such as housing and open space. And with high land costs and a slow entitlement process, open space may end up the loser. The Central Station project, which flanks an abandoned Union Pacific station in the industrial section of West Oakland, is a Bay Area example of corridor gentrification. Local developer Rick Holliday, who has a background in loft conversions in San Francisco, bought the 29-acre property in December 2000 from the Union Pacific, including the handsome Beaux Arts-style rail station, which Amtrak used until the Loma Prieta earthquake of 1989. Although Holliday had originally envisioned a mixed-use district with up to 2 million square feet of commercial space, the robust housing market coupled with the weak office market in the wake of the dot-com crash convinced the developer to re-position the project as an urban village. He plans about 1,400 units, which vary in height and density, from three stories on the southern boundary to seven stories on the north, at West Grand Avenue. In 2002, Holliday divided the property into nine different “development areas” keeping two for an affiliate of Holliday Development and selling the rest to different merchant builders. Notable among them is BUILD West Oakland, the CalPERS-funded, for-profit arm of Bridge Housing, the prolific non-profit homebuilder. Significantly, BUILD West Oakland owns both the 8,000-square-foot train station, the reuse of which remains undecided, as well as a three-quarter-acre site directly south of the building that planners have earmarked for open space. While most of the housing is to be built during the next decade, the developers have promised “moderate priced” housing in the $250,000- to $400,000-range, which is well below the median prices in the Bay Area and may create home ownership opportunities for first-time buyers. (There is no designated low- and moderate-income component, however.) The site plan indicates a variety of housing types, including conventional apartments, townhouses and courtyard housing. The planning on the Central Station site is sophisticated. Zoning guidelines for the area known as the Wood Street Zoning District call for plentiful landscaping, the undergrounding of utilities, and setbacks in the profile of tall buildings to prevent streets that look like shadowy canyons. Best of all, the guidelines provide pedestrian connections across a six-block area of the Central Station site. These connections allow people on foot and bicycles to avoid traffic throughout the entire site. Equally important, the connections make it impossible for cars to zoom through the neighborhood as a short-cut to Interstate 880, which lies directly west of the site. This simple but powerful design move ensures safety and comparative quiet for the new residential neighborhood. Starting with these guidelines, David Baker + Partners, a San Francisco architectural firm, prepared a conceptual site plan on behalf of the developer that has a number of sensible touches. The site planners appear to be struggling with the difficulty of somehow softening the impact of this great wall of housing, which starts at three stories and steady rises as the plan moves northeast from 10th Street to West Grand Avenue, where the buildings are slated to be seven stories. The site planners rightly make the old train station into the visual centerpiece at 16th Street, where passers-by can enjoy an unobstructed view of the historic building. They create wide streets at two-block intervals between 12th and 20th streets. The designers also provide something like a linear park along the western frontage road that parallels I-880. The tallest and most dense structures are located to the north, where the 90-foot-tall buildings are to loom over the elevated roadway of West Grand Avenue. What Baker has not been able to do, however, is to create adequate open space for a neighborhood that could house more than 3,000 people in a little less than 30 acres. It is true that the streets will be walkable and that the pedestrian connections between blocks go a long distance toward providing some opportunities for exercise. But open space is essential to quality of life, both to provide the background for exercise and to offset the oppressive atmosphere of tall buildings. It is unfortunate that the largest single open space in the Central Station design is the “front yard” of the train station, which is less than an acre. The site planners might retort, with reason, that the ratio of green space to buildings is actually high, and, further, that the linear park spaces allow plenty of opportunity for jogging and bicycling. What is missing, however, are ball fields and spaces suitable for large gatherings. Large open spaces also have esthetic value, providing what might be called psychological breathing room. The ultimate culprit here is the city, which appears to have sacrificed a quality-of-life issue — parks and open space — in the name of maximizing homebuilding. By failing to do so, the city has lost a once-in-a-century opportunity to provide for the public realm. One possible solution would have been for the city to buy one or two of the parcels as parkland, using park bonds to buy the land and creating an assessment district in the Central Station area to pay them off. Maybe that would have reduced housing affordability. However, the shortfall in open space mars an otherwise admirable plan.

The Ninth U.S. Circuit Court of Appeals has upheld a plan that gives the San Joaquin Valley until 2010 to achieve permissible amounts of soot and dust in the air. Environmentalists and public health advocates had argued for a 2006 deadline. Over the last 15 years, air pollution has emerged as one of the biggest issues in the San Joaquin Valley (see , January 2004, April 2002). Increasingly, the issue has land use implications, as air quality regulators restrict certain farming practices and search for ways to encourage denser development. The issue in this case is PM-10 — particulate matter of 10 microns or less. Unlike ozone pollution, PM-10 is visible to the human eye. The San Joaquin Valley has some of the highest PM-10 levels in the country, primarily from travel on dirt roads, agricultural practices and burning. In 1990, Congress added provisions to the Clean Air Act specifically to address PM-10 pollution. At that time, the Valley was classified a “moderate area” for PM-10 pollution, a classification that gave the region until December 31, 1994, to attain air quality standards. State and regional officials appealed and got the Valley reclassified as a “serious area,” which changed the attainment deadline to December 31, 2001. The San Joaquin Valley Unified Air Pollution Control District and the California Air Resources Board submitted an attainment plan to EPA in 1997 but withdrew the blueprint when EPA indicated it would reject the plan. The state did not submit a new plan until July 2002 — six months after the attainment deadline passed. Because of the missed deadline, EPA required the state to revise the plan to reflect 5% annual reductions in PM-10 pollutants. The state submitted the revised plan in August 2003, and EPA approved it the following year. The revised plan contains a December 31, 2010, deadline for attainment — a full 16 years later than the original deadline. The groups Association of Irritated Residents, Latino Issues Forum, Medical Advocates for Healthy Air and Sierra Club then sued the EPA, arguing that the EPA could not extend the deadline past 2006. The advocacy groups also challenged the plan’s methods of attaining air quality standards. A unanimous three-judge panel of the Ninth Circuit, however, upheld the EPA’s actions. The groups argued that because the Clean Air Act contains provisions for a five-year extension of the PM-10 deadline, the EPA could not rely on more general Clean Air Act provisions to grant consecutive five-year extensions. They also argued that the EPA’s interpretation of the law would allow for endless 10-year extensions without repercussions. But the Ninth Circuit determined that specific PM-10 measures in the act do not prohibit “the EPA’s application of the general provisions to change attainment deadlines.” “There are repercussions for failing to attain the standard by the applicable deadline,” Chief Judge Mary Schroeder wrote for the Ninth Circuit. She cited the requirement that areas that do not request a deadline extension must reduce emissions by 5% annually, and the possibility that the federal government could withhold highway funding. As for achieving those 5% reductions, the advocacy groups argued that Valley air regulators should not be able to count reductions based on the implementation of “best available control measures,” because the Clean Air Act has required those measures in the Valley since 1997. They argued that the plan’s approach would let regulators count attainment measures that should have been implemented years ago as “reductions.” The Ninth Circuit disagreed. “ ate implementation is better than none,” Schroeder wrote. The court also rejected the argument that the Valley should not be able to credit “excess reductions” to future years. The advocacy groups further challenged the EPA’s decision not to act on the 2003 plan’s contingency measures in the event of another missed deadline. The groups argued that the agency had to decide one way or the other. The EPA contended it could approve plans piecemeal. The Ninth Circuit sided with the EPA. Piecemeal approvals “ensure that earlier-approved provisions will become federally enforceable as soon as possible,” Schroeder wrote. The Case: , No. 04-72650, 05 C.D.O.S. 8024, 2005 DJDAR 10882. Filed September 6, 2005. The Lawyers: For AIR: Brent Newell, Center on Race, Poverty & Environment, (661) 720-9140. For the San Joaquin Valley Unified Air Pollution Control District: Philip Jay, (559) 230-6033.