Stockton's inland shipping port is poised to triple its capacity if port officials can stave off a lawsuit filed by environmentalists and port neighbors. At issue is a plan to enlarge the port by 1,400 acres of land on the San Joaquin River that the Stockton Port District acquired from the federal government three years ago. But nearby residents and environmentalists contend that an additional 130 visiting ships a year in Stockton will increase road traffic and cause more air and water pollution in the populated area. Expansion of the Stockton port - it is the largest inland port in the state - is viewed by the Stockton Port District as a economic boost to the region, creating jobs and encouraging the export of agricultural products from the Central Valley. However, the region is also beset by some of the state's worst air and water pollution, which, project opponents say, would be exacerbated by the port expansion. The expansion is proposed for Rough and Ready Island, a man-made island that housed a naval communications center in recent years. The site lies across the river from the existing 600-acre port, which opened in 1933, and which expansion opponents claim is underutilized. The new port land is located as close as 400 feet from exclusive residential homes on the water. Plans for expanding the port include upgrading and using seven wharves, constructing and operating a 105-acre container terminal and a 300-acre auto processing facility, developing an intermodal rail yard, dredging a mile of the San Joaquin River channel, and building bridge and road improvements. With an expected 130 new ships a year using Rough and Ready Island, the expansion is projected to add as many as 40,000 new jobs, according to the Port District. Already, the port has expanded its operations with 20 ships a year coming to Rough and Ready Island, something that environmental advocates charge was done without environmental review. Anne Chargin, an 81-year-old retired judge who lives on the waterfront across from the island, said ships' generators can be heard round the clock. Loading and unloading cargo, she said, occurs 20 hours a day. Bob Kavanaugh, the Port District's chairman, also lives on the waterfront and said the noise is not a problem. He said the port district did an extensive environmental impact report in preparing for its expansion. The study, however, did not satisfy project opponents. The environmental organizations Deltakeeper and the Natural Resources Defense Council (NRDC), along with several neighborhood associations, filed a the California Environmental Quality Act petition. In the lawsuit, the groups contend that 51,000 new vehicle trips each day after the expansion will cause more air pollution. In addition, ships and equipment such as tugboats and yard tractors will emit heavy diesel fumes. Water quality will also suffer if the expansion occurs, according to Robert Perlmutter, attorney for Deltakeeper and the residents' groups, because of a decrease in oxygen in the water, the introduction of invasive species and more runoff from stormwater and dredged materials. The CEQA lawsuit points out that the San Joaquin Valley air basin is designated as being in “extreme non-attainment” for national and state ozone standards and “serious non-attainment” for particulate matter. The San Joaquin Valley is considered to have the second worst air quality in the state, and diesel exhaust from the ships and truck traffic is expected to increase the problem dramatically, according to the lawsuit. Port spokeswoman Abbie Gubera countered that the port's expansion will take thousands of trucks off the highways leading to the Bay Area. But environmental advocates argue that one ship - using an extremely dirty fuel called bunker oil - emits many times as much pollution as automobiles do. The lawsuit also charges that the project will severely impact residents of Boggs Tract, a low-income minority residential area where much of the increased vehicle traffic will travel. But the Port District's Kavanaugh said the traffic near Boggs Tract will be redirected when a bridge is built to nearby Highway 4 as part of the project. NRDC attorney Julie Masters said opponents of the port's expansion are not against use of the island, but they favor a project that does not cause harmful effects. “The question is whether it's necessary,” she said. “We don't think it is being used to capacity. Why not use this as a commercial and light industrial area? It might have less impact on the surrounding communities.” Regarding unused capacity, Perlmutter said statistics show that the older part of the port on the east sits empty nearly 70% of the year. Port commissioner Steven Herum disagrees. “It's not true,” he said of the 70% figure. Herum said that the port is in negotiations with users who have special needs that can be met only with expanded facilities on Rough and Ready Island. Herum said the port district has adopted a number of measures to reduce noise, glare and light from affecting the nearby residences. Although the proposed expansion would require new truck routes and move operations closer to houses, it is unclear how environmentalists' suggestion to increase the use of existing facilities would solve the problem of noise at existing houses or the broader issue of air pollution. In addition to the lawsuit challenging the Stockton project, opponents plan to challenge the issuance of Central Valley Regional Water Quality Control Board permits that are needed before dredging can begin. Masters said court-ordered settlement talks were conducted in the CEQA case and are continuing. It is too early to tell if the sides will settle the case, she said. Stockton is not the only port district dealing with pollution issues. The NRDC recently won a $60 million judgment against an expansion project at the Port of Los Angeles. The judgment requires the port to construct the world's first electrified container terminal where ships can plug into dockside power while at berth, rather than continuously run their diesel engines to generate electricity. In September, Gov. Arnold Schwarzenegger vetoed legislation (AB 2042, Lowenthal) that would have capped the booming ports of Los Angeles and Long Beach at existing air pollution levels. Further north, issues of cost and truck emissions have bedeviled the Port of Sacramento, which is expected to consider deepening its port this fall to compete better with facilities such as those proposed in Stockton. Contacts: Steven Herum, Stockton Port District commissioner, (209) 472-7700. Bob Kavanaugh, Stockton Port District chairman, (209) 943-5443. Julie Masters, Natural Resources Defense Council, (310) 434-2300. Robert Perlmutter, Shute, Mihaly & Weinberger, (415) 552-7272. The case: , No. CV024399.

Any comparison between Cal Poly Pomona and a hermit crab is likely to be met with skepticism. It is absurd to suggest that a 1,050-acre university campus in Los Angeles County has anything in common with a crustacean scuttling across the ocean floor. Except for one thing, that is: Both the university and the deep-sea creature want to set up housekeeping in structures left behind by others. Hermit crabs, as most sixth-graders know, occupy sea shells abandoned by other creatures. Cal Poly Pomona, in this tenuous analogy, plans to occupy a set of office buildings and laboratories to be built by commercial developers on university land. The new buildings would be part of a 65-acre business park known as Innovation Village, which the Cal Poly Foundation is developing. The plan is this: The university will invite developers to build high-tech facilities, and lease the facilities to tech and bio-tech companies. The assumption is that tech companies will be attracted to the university's pool of engineering talent, while the companies - and the possibility of lucrative jobs -- will make the university even more attractive to engineering students. In other words, Cal Poly Pomona is trying to ignite the kind of town-and-gown “synergy” that has occurred in places like Palo Alto, Cambridge, Massachusetts, and Raleigh-Durham, North Carolina. While Cal Poly is not the only university that is trying to find the alchemical formula that created Silicon Valley, the concept goes one step further here. When the high-tech tenants depart in a decade or two, Cal Poly plans to take over the buildings and remake them into academic space. In other words, the university has conceived a way for commercial developers to build the next phase of campus expansion at their own cost. Although Cal Poly is not beating a bass drum about this aspect of Innovation Village, the concept is strikingly new in the world of campus development, at least in California. Public universities are traditionally built with public dollars. Those dollars are shrinking, however, and could conceivably shrink further in Schwarzenegger-era California, when the public university system, which used to be the envy of the world, becomes one more program to be slashed in the name of balancing the state budget. Even before the budget crisis, the state had gone from fully supporting the campus to paying only 90% of its cost, according to Ed Barnes, the university's associate vice president of executive affairs. “Cal Poly has gone from being a state-supported institution to a state-assisted institution," Barnes said. The message is clear: The Lord helps engineering schools who help themselves. The mission statement for Innovation Village Research Park calls for a “world class research and development environment for public-private partnerships and the leaders of tomorrow's industries to meet, exchange new ideas, challenge frontiers, and work together….” The village has gotten off to a good start, with the completion three years ago of a NASA-sponsored building for technology “incubator” companies. A 190,000-square-foot Red Cross Biomedical Services facility is scheduled to open in a few months. In October, the university was scheduled to choose a developer for the third phase, a 100,000-square-foot office building. The rub about Innovation Village is that the university has placed many limitations on developers while offering few incentives in return. The university retains ownership of the land, which may make it difficult for some developers to get financing because many lenders want the land as collateral. Also, developers do not have the ability to sell the buildings, restricting their income to rent. In exchange, the university will not assist the developers, who will take all the risks and pay market rate rents for the land. In addition, tenants are expected to participate in some way in the life of the university, which may not please wizards who are racing their rivals to develop new products. In short, the Cal Poly office park is a tough sell. It is not easy to make a miracle like Silicon Valley happen anywhere, much less in the smoggy Pomona Valley. Cal Poly, in fact, is one of several campuses in the state - including University of California, Riverside, UC Irvine and the medical school of UC San Francisco - that is trying to create a university-industry synergy. Cal Poly's Innovation Village was first conceived nine years ago, but a poor commercial real estate market did not help move the project along quickly. And Cal Poly is not alone. All of the UC efforts have been relatively slow starters, even in San Francisco, where developer Catellus is having difficulty renting out lab buildings in Mission Bay. While it is true that technology companies often cluster around universities, simply providing land near a university does not re-create Cambridge. Examined closely, we see that each of the locations for the synergy success stories offers something more than a research university and a tract of empty land. Places like Palo Alto, Cambridge and San Diego's University City are all highly desirable places to live, with nice housing, great cultural amenities, an abundance of outdoor recreation opportunities, and the like. They are places where smart, energetic people choose to live. And, for better of worse, there is little technology market in the Pomona Valley, where tech companies fill less than 300,000 square feet of space. The university hopes to build about three times that amount - 800,000 square feet - in the foreseeable future. Still, needing a few years to get started and a having to make a difficult sale are not necessarily a foretaste of failure. Innovation Village may yet take off. We should remember, though, that real estate development and university development follow different time lines. Cal Poly itself is eager to expand, and its need for new space could conceivably outstrip the pace of development at Innovation Village. Unless the technology market improves dramatically, the great Cal Poly Pomona hermit crab may find itself outgrowing its old home before it has a new one to move into.

Monterey County should have completed an environmental impact report for a proposal to demolish a county jail that many people consider historic for cultural and architectural reasons, the Sixth District Court of Appeal has ruled. The court found that the county's mitigated negative declaration was inadequate because project opponents had made a “fair argument” that the potential impacts of the project would not be offset. “One function of an EIR is to address the adequacy of proposed mitigation measures. Another function is to consider alternatives to the project,” Justice Richard McAdams wrote for the court. “Neither was fully explored here. In cases like this, an 'EIR is required to identify and examine the full range of feasible mitigation measures and alternatives to demolition,'” McAdams wrote, citing , (1997) 52 Cal.App.4th 896, 909 (see CP&DR Legal Digest, March 1997). The case involves the old Monterey County jail in Salinas. The county would like to tear down the little-used, 73-year-old jail in order to renovate the adjacent courthouse and government offices. When the county reported that it planned to adopt a mitigated negative declaration for the jail demolition, the county's Historic Resources Review Board and other historic preservation advocates told county officials that the document was insufficient. Nevertheless, in July 2001, the county Planning and Building Inspection Department adopted a mitigated negative declaration and issued a demolition permit. Mitigations included photographic documentation of the building, preparation of an historic monograph, reuse or duplication of architectural elements, and maintaining a complete set of blueprints at the local historical society. A citizens' group called the Architectural Heritage Association appealed to the Board of Supervisors, but the board affirmed the mitigated negative declaration. The association then sued the county, alleging violations of the California Environmental Quality Act. Monterey County Superior Court Judge Robert O'Farrell ruled for the county, but a unanimous three-judge panel of the Sixth District overturned the lower court and ordered the county to prepare an EIR. Essentially, the questions for the court were whether the association could make a fair argument based on evidence in the record that the old jail is an historic resource, that its demolition would have a significant impact on the resource, and that the proposed mitigation measures would not reduce the impact to insignificant. The county's initial study - a prelude to the mitigated negative declaration - called the old jailhouse “a significant historic resource as defined by CEQA.” The county, however, discounted that description, saying it was based solely on the fact that Cesar Chavez was incarcerated there during a 1970 lettuce boycott. The county also contended that a finding of significance by the Historic Resources Review Board was a “gratuitous conclusion” and that county staff statements did not qualify as substantial evidence. The Sixth District disagreed. The initial study was based on a report by Robert Cartier of Archaeological Resource Management. The initial study noted not only the significance of Chavez's jailing (during which the labor leader was visited by Coretta Scott King and Ethel Kennedy) but also the gothic revival architecture of the structure, as well as to Cartier's conclusion that the jail was eligible for both the national and state registers of historic places. The county based its argument on , (1982) 137 Cal.App.3d 424, in which the court held that subordinate agency staff determinations alone did not constitute substantial evidence. But the Sixth District said that the county was reading too broadly, and that the CEQA definition of substantial evidence had changed since . “Here,” Justice McAdams wrote, “the record includes fact-based evidence of historic status, which the Historic Board and its subcommittee had gained through meetings with county staff, a site view and the review of pertinent documents.” The court also dismissed the county's contention that speakers at public hearings provided only “unsubstantiated opinions.” The court noted that the speakers included an historian and an architect. “These and other speakers' remarks represent fact-based observations by people apparently qualified to speak to the question of the jail's historic status. That testimony constitutes substantial evidence because it consists of 'facts, reasonable assumptions predicated upon facts and expert opinion supported by facts,'” McAdams wrote, citing Public Resources Code § 21082.2, subdivision (c). The court also rejected the county's argument that the mitigation measures in the negative declaration were adequate in light of the old jail's poor structural condition. “Without undertaking a full EIR, the county determined that the jail could not be saved, finding that 'its preservation or adaptive reuse is impractical due to its age, design and deteriorating condition, and opening up the building for more usable spaces would seriously degrade the structural integrity of the building and pose a safety hazard to its occupants and neighbors.' We find this determination insupportable, both factually and legally,” McAdams wrote. “As a factual matter, the administrative record discloses mixed conclusions concerning the physical condition of the structure, as well as an incomplete investigation both of the jail's condition and of alternatives to demolition,” McAdams wrote. Since the litigation began, the jail made the National Register of Historic Places. At the county's request, the federal officials withdrew the listing, but the state Historic Resources Commission has urged the federal panel to reinstate the old jail's status. The Case: , No. H026443, 04 C.D.O.S. 8997, 2004 DJDAR 12247. Filed August 31, 2004. Modified and ordered published September 30, 2004. The Lawyers: For the association: Susan Brandt-Hawley, (707) 938-3908. For the county: Efren Iglesia, county county's office, (831) 755-5045.

California's population growth never seems to change much - a half-million more people per year, give or take. But where all those people come from and what the growth means for the future of the state are always changing. Here's a good example, courtesy of demographer Hans Johnson of the Public Policy Institute of California: During the 1990s, California added 4 million people - but only 60% of them (2.5 million) were adults, while 40% (1.5 million) were children. In the first decade of the 21st Century, we're looking at adding about 5 million people. But this time around, 90% of them (4.5 million people) will be adults and only 10% (500,000) will be children. The reason is simple: The vast increase in Latino population during the 1990s was due largely to extremely high Latina fertility rates that are typical of first-generation immigrants. But Latina fertility rates are decreasing, and all the Latino kids born during the '80s and '90s are growing up. The result is a bubble - a kind of “Latino baby boom” - that is going to drive the demand for all kinds of things in California over the next several decades. As Johnson pointed out during a recent conference of housing data nerds in Berkeley, the Latino baby boomers have been driving the vast need for additional K-12 schools over the last decade. Now this group of kids is beginning to generate an enormous demand for higher education that the state will struggle to handle. And over the next decade or so, they'll hit the housing market like a tsunami. Everybody knows that the housing market in California has been out of whack for more than a decade. After a boom during the 1980s, housing production died during the recession of the early '90s. Even after the recession ended, the state produced only about 100,000 to 150,000 units per year during the late '90s - half what the housing experts told us we needed. California got away with low housing production for several reasons, not the least of which was the structure of the population growth. For the first time in the state's history, a huge portion of population growth came in the form of children, who, obviously, don't live in their own houses. And any demographer will tell you that immigrants are much more likely than natives to live in extended families. Housing production has increased steadily during the last few years and recently hit an annual figure of 200,000 for the first time in decades. Even so, the long-term under-production is now catching up with us, as the ongoing increase in housing prices has proven. If Johnson and other demographers are right, even the recent, higher level of housing production will not come close to meeting demand in the next few years. Immigrants may live together in large extended families, but their children - the second generation - are much more likely to live in smaller households like other native-born groups. “In 2000, California's second generation was concentrated in children,” Johnson told the Housing Statistics User Group West meeting at the University of California, Berkeley. “And that population, that second generation, in the next 10 to 20 years is going to be aging into the prime household formation years. We're not going to have the same kind of increase in immigrants that we saw in the 1990s. Instead, what we're going to have is a very large second generation that's going to be coming through the colleges, entering the labor market, and looking for housing.” In the very long run, this pattern is actually going to mean fewer people than demographers previously expected. Last spring, the Department of Finance demographers adjusted their long-term population forecast downward because they now assume lower Latina fertility rates, a result of the second-generation phenomenon. The state is now expected to hit 51 million people by 2040. That's a few million less than the previous forecast. And the Latinization of the state will continue. The state demographers estimate that, by 2040, 53% of the state will be Latino, while only 23% will be white. Still, there is little doubt that as a state, California must plan for more housing during the next two decades. The question is what kind. As Johnson says, “Not all population growth is equal when it comes to housing demand.” Most of the recent population growth in California has been concentrated among lower-income groups that would typically be renters. But until the last few years, the vast majority of housing production in the state has been in the form of single-family detached ownership dwellings - seemingly an enormous mismatch between supply and demand. As this column has suggested before, this has meant that all kinds of households - large and small, rich and poor - have been shoehorned into traditional suburban housing. We now see more multifamily construction, but this is occurring mostly in the coastal areas where land prices are extremely costly and entitlements are very difficult to obtain (see , June 2004). These expensive new apartments and condos are not being built for immigrant families. Meanwhile, three-quarters of housing production in the state is still in single-family detached dwellings, with lot size and unit price changing depending on where in the state the construction is taking place. Is this a good match to the emerging market? Oddly enough, maybe. Again, as the demographers always point out, it depends on what kind of pattern emerges in housing demand. As Johnson notes, if you take today's income and educational levels and roll them forward by race and ethnicity, you would see a huge demand for low-cost housing. But that scenario is not likely to happen because second generation Latinos are ascending rapidly in educational attainment and income - and education and income are generally the best predictors of what housing demand is going to look like. Simply put, as the children and grandchildren of Latino immigrants ascend into the middle class, they are going to be looking for housing that matches the traditional California dream. The big question is whether it will still be there for them. In the coastal areas, postage-stamp lots are now beyond the reach of the middle class. In the inland areas, the dream now involves a nearly intolerable commute that is likely to get worse. Sometime around 2015, something has got to give.

At first blush, the 108th Congress might not seem a welcoming venue for legislation expanding the nation's wilderness system. Majority control in both the House and Senate lies with Republican lawmakers whose attitude toward initiatives backed by environmentalists has ranged from indifference to hostility. Even if a significant conservation bill were to win passage during the current legislative session, it could expect a chilly reception at the White House, whose current occupant has made his policies toward public lands clear by seeking to open them to oil and gas drilling, off-road vehicle use and other activities anathema to green groups. Nevertheless, optimistic legislators from a host of western states introduced a wide-ranging menu of wilderness bills in 2003, when the current Congress commenced work. Remarkably, a significant number remain in play as the 2004 session winds down, including several that would bring a sweeping expansion to the federal wilderness system in California. One of those bills appears to have a decent chance of passage, probably during the post-election, lame-duck session, thanks to bipartisan support and a balanced approach to protection that won it friends even among interest groups typically opposed to new land-conservation measures. “We're optimistic,” said Traci Sheehan, director of the California Wilderness Campaign. “A lot of wilderness bills pass at the end of the session.” The 1964 Wilderness Act permits Congress to designate federal lands as wilderness, which prohibits roads and structures as well as activities such as logging, mining and grazing. Local government officials and business proponents in many rural communities often regard wilderness designations as direct attacks on local economic bases. Still, one proposal by Democratic Rep. Mike Thompson has received the backing of many local interests, including those with ties to logging and mining. The most sweeping of the pending California wilderness bills is S. 1555 by Sen. Barbara Boxer. Originally introduced in May 2002, it went nowhere before the 107th Congress adjourned. Boxer re-introduced the legislation in 2003. It would designate 2.5 million acres of wilderness and confer wild and scenic status on 400 miles of rivers. Boxer failed to win a single co-sponsor for the bill, which has remained bottled up in the Committee on Energy and Natural Resources since its introduction. With Boxer campaigning this year for re-election against Republican Bill Jones, there was never much chance the Senate majority would hand her a significant legislative achievement by moving the bill along. With Boxer's bill stalled, a confusingly overlapping series of alternative California wilderness emerged. Two of them, taken together, closely mirror the contents of Boxer's original bill. Neither appears to have any better chance of passage than Boxer's original bill. Thompson, who represents a huge district in northwestern California, introduced HR 3327 in October 2003. Titled the Northern California Wild Heritage Wilderness and Wild Rivers Act, it would designate more than 800,000 acres of wilderness - most of that in national forests in the northern Sierra - and 123 miles of wild and scenic rivers. It would also establish a Sacramento River National Conservation Area on 17,000 acres adjacent to the Sacramento River, Lower Battle Creek and Lower Paynes Creek in Tehama and Shasta counties, to be managed primarily for recreation and wildlife. Simultaneously, Rep. Hilda Solis, a Democrat from the San Gabriel Valley, introduced HR 3325, the Southern California Wild Heritage Wilderness Act. It would designate 1.7 million acres of wilderness and more than 300 miles of wild and scenic rivers between the central Sierra Nevada and the Mexican border. Like Boxer's more ambitious wilderness act, the Solis/Thompson companion bills both were retreads of unsuccessful 2002 bills. And like Boxer's original bill, the 2003 Solis/Thompson bills promptly vanished into subcommittee limbo. The California wilderness legislation given the best chance of passage this year comprises another pair of companion bills, both introduced on March 27, 2003: Thompson's HR 1501, and S. 738, sponsored by Boxer. Both bills carry the same title - the Northern California Coastal Wild Heritage Act - and both would designate about 300,000 acres of wilderness in Thompson's district, which includes all or part of Del Norte, Humboldt, Mendocino, Lake, Sonoma, Napa and Yolo counties. The bills also would confer wild and scenic status on Black Butte River in Mendocino County. Perhaps the most prominent effect of the Thompson/Boxer bills would be their creation of the King Range Wilderness, encompassing Northern California's “Lost Coast” - a spectacular landscape of isolated beaches and coastal mountains so steep and rugged that roads have never penetrated much of it. The legislation also would expand the existing Trinity Alps, Siskiyou, Snow Mountain and Yolla Bolly-Middle Eel wilderness areas. The more limited scope of the coastal legislation apparently worked to its favor. Boxer persuaded her Democratic colleague, Sen. Dianne Feinstein, to sign on as a co-sponsor, a level of support Feinstein did not extend to any of the other California wilderness bills. On July 21, the Subcommittee on Public Lands and Forests conducted a hearing on S. 738, where it won praise even from such staunch conservatives as Idaho Republican Sen. Larry Craig, chairman of the Committee on Energy and Natural Resources. The bill was held back by the subcommittee so a few details could be clarified, the Wilderness Campaign's Sheehan said. But, according to the California Wilderness Campaign's Washington lobbyists, there was bipartisan praise for the way Thompson and Boxer had involved members of the local community when drafting the bills, and had lined up support from a wide range of interest groups. Supporters in Thompson's district include more than 40 elected officials, 100 businesses, a loggers union, lumber mills, Indian tribes, ranchers, farmers and vintners, as well as statewide environmental groups. Although Congress was expected to recess for the election before acting, it was expected to return to work November 15, and could approve the wilderness bill after that. There is historical precedent for passage of wilderness bills even with a Congress and administration that environmentalists regard as hostile. Among recent Republican presidents, Ronald Reagan signed eight wilderness bills into law, George H.W. Bush signed eight, Richard Nixon signed nine and Gerald Ford signed 13. And in late 2002, the current President Bush signed the Clark County Conservation of Public Land and Natural Resources Act, which designated 440,000 acres of wilderness in southern Nevada's Clark County, and the Big Sur Wilderness and Conservation Act, which designated 56,880 acres of wilderness in California's Monterey and San Benito counties. Contacts: Traci Sheehan, California Wild Heritage Campaign, (916) 442-3396, Ext. 222. Office of Sen. Barbara Boxer, (202) 224-3553. Office of Rep. Mike Thompson, (202) 225-3311.

The U.S. Supreme Court is scheduled to hear three cases during its 2004-05 session with potential implications for planning, land regulation and development in California. The court has accepted for review an eminent domain case from Connecticut, a case involving the installation of a radio antenna in Rancho Palos Verdes, and a takings case from Hawaii. The eminent domain case might have the greatest potential impact on local planning. It concerns the use of eminent domain by the City of New London, Connecticut, to acquire 115 houses. After acquiring the property and paying the owners, the city intends to lease the land to a developer for construction of a waterfront hotel and conference center, a technology research and development office park, retail stores and 80 new homes. The existing houses are working-class, but no one claims that the structures are a blight. Instead, the city has argued that it needs to acquire the property for the economic good of the community. The city says the proposed development would generate hundreds of new jobs and millions of dollars in taxes. Seven of the homeowners have fought New London's use of eminent domain, but the Connecticut Supreme Court ruled 4-3 for the city. For several years, property rights advocates have been trying to get a case like this one in front of the high court. The advocates argue that the government's taking of private property for strictly economic purposes - and not to accommodate a public works project or to abate a nuisance - is an abuse of eminent domain that violates the Fifth Amendment's takings clause. Government officials argue that concern for the economic welfare of citizens as a whole permits this use of eminent domain. The case is , No. 04-108. The antenna case comes from the wealthy Los Angeles County city of Rancho Palos Verdes and concerns the city's long-running battle with property owner Mark Abrams. About 15 years ago, the city permitted Abrams to erect a 52-foot-tall radio antenna on his property, near the peak of the Palos Verdes Peninsula. Years later, when the city learned that Abrams was using the antenna and others on his property for commercial transmissions, the city tried to shut him down. Abrams applied for a conditional use permit, but the city rejected it. Abrams sued the city, arguing that it was violating the Telecommunications Act of 1996 and that he was eligible for damages under the federal Civil Rights Act. The Ninth Circuit agreed on both counts (see , March 2004). The circuit courts, however, appear to be divided on the issue of damages. Rancho Palos Verdes asked the U.S. Supreme Court to hear the case. Several California cities and the League of California Cities have already weighed in on the Rancho Palos Verdes side. The case is , No. 03-1601. The third case's implications for land use are more indirect. The case involves a State of Hawaii law that regulates the rent which oil companies may charge their dealer-run stations. The law also prevents the oil companies from taking over the stations. The law is an attempt to control gasoline prices. The Ninth Circuit ruled that the law is an uncompensated taking of private property, in violation of the Fifth Amendment. Earlier this year, the Ninth Circuit extended the same reasoning to a mobile home rent control case from the City of Cotati. The court found the city's regulation of mobile home pad rents to be an illegal taking of private property from the mobile home park owners (see , October 2004; , September 2004). The decision in the Cotati case was built in large part on the Hawaii case, which the U.S. Supreme Court will now review. California was one of 19 states that asked the high court to review the decision because of its potential impact on economic regulations of all kinds. The case is , No. 04-163. Decisions in all three cases are due by June 30, 2005.

The purely aesthetic impacts of a housing project in an urban area are not enough to require preparation of an environmental impact report, the First District Court of Appeal has ruled. In a lengthy opinion, the court appeared to conclude that where aesthetics are the lone issue, a local government's design review process could substitute for environmental review. “Where a project must undergo design review under local law, that process itself can be found to mitigate purely aesthetic impacts to insignificance, even if some people are dissatisfied with the outcome,” Presiding Justice Laurence Kay wrote for the court. Attorney Susan Brandt-Hawley, who represented neighbors opposed to a proposed 40-unit apartment building, called the decision an aberration that could “set the law back 30 years.” She said the court failed to apply the “fair argument” standard, which requires preparation of an EIR if the record contains substantial evidence to support a fair argument that a project could adversely impact the environment. Brandt-Hawley has requested a rehearing and depublication of the decision. The developer's attorney did not return calls. But in an analysis that favors the decision, attorneys at Morrison & Foerster said the ruling offers “important guidance for evaluating how the California Environmental Quality Act applies to infill and affordable housing projects.” Neighbors often fight infill projects based on aesthetic impacts, but “the court explained that the significance of an environmental impact must be measured in light of the context where it occurs, and the urban infill project at issue would not result in aesthetic impacts similar to those caused by projects located in environmentally sensitive areas or implicating historical or scenic resources.” Although the case featured the common scene of Berkeley residents fighting housing construction, the case was uncommon in other respects, suggesting the tricky nature of infill development. For one thing, the Sierra Club sided with the developer, calling the project “smart growth.” For another, the lead litigant was Marie Bowman, an affordable housing advocate. She was represented at the appellate level by Brandt-Hawley, who frequently does work for the Sierra Club. Representing the developer was Shute, Mihaly & Weinberger, a San Francisco firm best known for its environmental protection work. The proposed project is a four-story, 40-unit apartment building for low-income seniors, with 3,000 square feet of retail space on the ground floor. The site is a 0.41-acre parcel at Sacramento and Blake streets, where a vacant store now stands. Because the proposal's height, parking spaces, lot coverage and setbacks conflict with the zoning ordinance, the project needs a use permit. Throughout the city's review process, neighbors complained that the proposed apartment building was too large for a neighborhood composed mostly of single-story houses built during the 1920s. The neighbors argued that the city should prepare an EIR because of numerous potential impacts. Nevertheless, the Berkeley Zoning Administration Board (ZAB) in February 2002 adopted a mitigated negative declaration and approved a use permit. Opponents appealed, but three months later the City Council upheld the ZAB decision on the condition that the developer provide two to five additional parking spaces. However, opponents complained that they did not receive notice of the City Council meeting, so they sued. When the court determined that opponents did not receive a fair hearing, the City Council set a new hearing for March 2003. Again, the council approved the mitigated negative declaration and a use permit. Opponents returned to court, arguing that a mitigated negative declaration was inadequate because of potential impacts regarding aesthetics and hazardous materials. Opponents also argued that the city had miscalculated a density bonus and did not require the amount of parking mandated by city ordinance. Alameda County Superior Court Judge Bonnie Sabraw ruled for the city. The neighbors appealed, but a unanimous three-judge panel of the First District, Division Four, upheld the lower court. The appellate court first dealt with the issue of hazardous materials. A neighboring property had been the site of a gasoline station from 1949 to 1993. The site had undergone testing and cleanup, and the city in 1997 concluded that impacts to soil and groundwater were well-defined and limited. The project developer, Affordable Housing Associates, prepared a phase 1 environmental site assessment, which relied on earlier monitoring. The mitigated negative declaration found that the project would have no impact regarding hazardous materials. The consultant for the mitigated negative declaration, however, read the earlier monitoring reports differently than the neighbors did. They noted that an earlier consultant had recommended placing an additional monitoring well on the site of the proposed housing project, but the property owner at the time refused to provide access. They also argued the contamination was unlikely to recognize property lines. But that was not enough for the court. “Statements of area residents who are not environmental experts may qualify as substantial evidence if they are based on relevant personal observations or involve 'nontechnical' issues,” Justice Kay wrote. “However, a complex scientific issue such as the migration of chemicals through land calls for expert evaluation, and the neighbors do not profess any expertise that would qualify them to opine on that subject.” The court then turned to aesthetics. Neighbors contended that the building would be incompatible with the neighborhood, cast shadows on nearby homes and block views. However, the court concluded there was not substantial evidence that shading would be an impact, and, anyway, only a few people would be affected. The court said the issue boiled down to one story of the proposed building, because neighbors said during a mediation process that they would accept a three-story building. The First District said no case law directly addressed a similar situation, so the court used a 31-year-old National Environmental Policy Act (NEPA) case, 487 F2d 1029, for guidance. In that case, the U.S. Court of Appeals for the District of Columbia Circuit concluded that NEPA did not require an environmental impact statement to address the visual impacts of a proposed mail processing facility. Citing that case, Kay wrote, “ e do not believe that our Legislature in enacting CEQA, any more than Congress in enacting NEPA, intended to require an EIR where the sole environmental impact is the aesthetic merit of a building in a highly developed area. To rule otherwise would mean that an EIR would be required for every urban building project that is not exempt under CEQA if enough people could be marshaled to complain about how it will look. … The aesthetic difference between a four-story and a three-story building on a commercial lot on a major thoroughfare in a developed urban area is not a significant environmental impact, even under the fair argument standard.” Brandt-Hawley, however, said that the NEPA case was inapplicable because NEPA standards for an EIS are different than CEQA standards for an EIR. Additionally, she said, the court wrongly made a three-story building the baseline for analysis. Neighbors should not be penalized for discussing a three-story building during never-completed mediation, she contended. “The baseline is the current situation, not what the neighbors purportedly offered in a settlement discussion,” Brandt-Hawley said. The court “is not measuring against the actual situation.” The court did not publish the portion of its opinion upholding the city's handling of the density bonus and reduced parking requirement. The Case: , No. A103980, 04 C.D.O.S. 8632, 2004 DJDAR 11751. Filed September 20, 2004. The Lawyers: For Bowman: Susan Brandt-Hawley, (707) 938-3908. For the city: Zachary Cowan, city attorney's office, (510) 981-6950. For Affordable Housing Associates: Ellen Garber, Shute, Mihaly & Weinberger, (415) 552-7272.

One year ago, a series of wildfires wrought an unprecedented level of destruction in Southern California, and many experts believe that fires of similar magnitude could strike again. In the year since the fires, government agencies have approved a variety of measures in hopes of reducing damage by future fires, but it does not appear that broad changes in land use planning are part of those fire-safe measures. The fires sparked the formation of numerous state, regional and local task forces and commissions, many of which have issued detailed reports and recommendations since firefighters doused the last hot spots in November 2003. For the most part, the follow-up reports have addressed firefighting and other emergency services. Building standards received some attention. Recommended changes to large-scale building patterns or planning practices, however, have not been part of the mix. At least two factors appear to be forcing planners into the background. First, there is no consensus on what steps planners could take. And, maybe more importantly, the marketplace is unlikely to accept drastic changes in how people build in rugged, scenic — and, yes, fire-prone — areas. The lack of a consensus might be a nod to pragmatism. Even the most drastic proposals — such as building moratoriums in mountainous areas clogged with unhealthy trees — meet with shrugs from firefighters. The ambivalence stems from the fact that so many dangerous areas are already developed. For example, the Lake Arrowhead area in San Bernardino County — where a huge tree die-off, a century of fire suppression and ongoing drought have created wickedly dangerous conditions — already has about 90,000 residents, not counting all of the people who own second homes there. Firefighters are focused on protecting people and structures that are already in harms way. “A moratorium,” San Bernardino County Supervisor Patti Aguiar told the , “probably made sense a long time ago, if you didn’t want anybody up there. But now, everybody’s already up there. It’s pretty darn late.” Although he views the situation a bit differently University of California, Riverside, earth sciences Professor Tom Scott agreed that Aguiar has a point. “If you already have five houses on a street, it won’t significantly alter the land use if you build two more houses,” Scott said. Then there are the considerations of civil rights and the public marketplace. A long-term moratorium could raise property rights issues. Drastic changes in planning and zoning — such as requiring very large lot sizes to limit building density, or mandating clustered development inside a wide fire break — would be difficult to sell to property owners and the general public. “Land values didn’t go down at Lake Arrowhead, even though almost the whole town burned down last year,” pointed out Richard Minnich, also a professor in UCR’s earth sciences department. “People don’t have long memories. They want to live in the woods with the birds and the bees.” Still, the marketplace itself might force some changes, and that is because insurers are growing wary of California’s fire hazard. Plus, some policymakers are questioning whether homeowners who live outside of fire hazard zones should continue to subsidize insurance rates for people who live in what is known as the “urban-wildland interface.” “If we start getting these catastrophic fires on a routine basis,” said Scott, “maybe people won’t be able to build in some of these places because they won’t be able to get insurance.” New Building Standards The magnitude of the 2003 fires in Southern California remains difficult to grasp. On October 21, 2003, the first fire ignited, beginning two weeks worth of 14 fires in San Diego, Riverside, San Bernardino, Los Angeles and Riverside counties. By the time firefighters had all of the blazes contained on November 4, the fires had killed 24 people and injured 246 others, destroyed 3,631 homes and scorched 1,150 square miles of forest, chaparral and grassland. Less than two months later, floods and mudslides in fire-ravaged Waterman Canyon north of the City of San Bernardino killed 16 people. Despite the death and devastation, there were slivers of hope. Ventura and Los Angeles counties combined counted the lost homes in the dozens — not in the hundreds — even though more than 200,000 acres burned. Limits on “rural sprawl,” and strict building and brush clearance standards were credited for keeping most structures safe (see , February 2004). Even San Diego County, which suffered about two-thirds of the property damage, saw much greater survivability of homes built after the county Board of Supervisors adopted tougher building standards in 1997. In the past year, building codes have continued to get stricter in many jurisdictions that were hit or threatened by the firestorms. “A lot of conversation has taken place,” said Kevin Crawford, fire chief in the City of Carlsbad and president of the San Diego County Fire Chiefs Association. “We have the ear in a way that we never had it before.” San Diego County, for example, upgraded roofing requirements, outlawed siding made of wood or other easily flammable material, mandated dual-glazed windows, and set new standards for gutters and exterior doors. In high-fire-risk areas, the county prohibited new wooden fences or patio covers. The City of San Diego, which had refused to ban wood shake roofs, took that step earlier this year. San Bernardino County has gone further. Earlier this year, the county amended its general plan fire hazard overlay maps and modified the development code. “I think we’ve gone a long way in beefing up our development requirements,’ said Michael Hays, director of San Bernardino County’s Land Use Services Department. The general plan amendment placed hazardous areas into one of three categories. Fire safety area 1 covers the San Bernardino Mountains and valley foothills, while area 2 takes in the mountain-desert interface on the mountains’ north side. Area 3, the most dangerous zone, is the urban-wildland interface on the south side of the mountains adjacent to the City of San Bernardino. Last year, fire swept into the city in that area. At the same time that it approved the general plan amendment, the county tightened the development code, including banning wood shake roofs. The most stringent requirements apply in area 3, where, for example, eaves must be enclosed by flame-retardant material. The county also limited development density in hilly areas and even prohibited all development on slopes of more than 30% in the foothills. The county is keeping fire safety in mind while it is updating the general plan, Hays said. “I think we have made a good attempt at it already,” he added. “We will certainly give it a more refined look during the general plan update process. But, believe it not, there is opposition to some of this.” Chief Crawford would believe it. “There is still much debate about how far codes and ordinances need to go,” Crawford said. “There is still the battle between the fire services and the building industry, and with the planners and engineers.” The Nature of Fire Whether the code changes will make a big difference in the event of a catastrophic fire is unclear. Even UCR’s Minnich, a skeptic regarding local fire-safe regulations, said that it was only “dumb luck” that a fire swept into San Diego’s Scripps Ranch neighborhood last year, burning about 300 houses. Instead, Minnich and others point to the need for different land and fire management strategies that involve dramatic reductions in the amount of “fuel” that comes in the form of dead trees and chaparral, overly dense forests and tall grasses. The Governor’s Blue Ribbon Fire Commission, which released a lengthy report this year, dealt at length with the problem of too much burnable material on both public and private lands. “Until the removal of thousands of acres of dead bark beetle infested trees and sound forest stewardship is achieved, Southern California and other forested areas of the state will continue to have hazardous standing fuel just waiting to become the next conflagration,” the governor’s commission reported. “Fuel reduction and fuel modification programs are essential to reducing the potential threat of major WUI fires.” Again, San Bernardino County might be a small step ahead of other jurisdictions. In 2002, the county began insisting that property owners remove dead trees and the county started placing liens on the real estate of recalcitrant landowners. Of course, new land and fire management strategies are far easier to recommend than to implement. Upon the release of the governor’s commission report, Chairman William Campbell, a former Republican state senator from Hacienda Heights, said environmental regulations must be relaxed to allow large-scale fuel reductions. Otherwise, Campbell said, “these tragedies are certain to repeat.” That recommendation drew a strong condemnation from environmentalists, who insisted that regulation does not prevent proper forest management. Better land and fire management would involve thinning trees, letting low-intensity fires burn even during summer months, and using cattle to graze on grasslands near urban areas, Minnich suggested. But Minnich, who has studied wildfire extensively in the West and in Mexico, blames the conundrum on a deep-seated mindset that can be seen in the face of Smokey Bear. Fire is simply part of the landscape, he said. There is no such thing as “fire prevention,” only fire postponement, he urged. “We have no more ability to control fires than we do any of the other natural occurrences — earthquakes, flood, tornadoes,” Minnich said. “It’s a ridiculous mindset.” As has been proven many times, the recommendations of one commission — even one tasked by the governor himself — do not mean change is on the way. The recommendations of the Governor’s Blue Ribbon Fire Commission resulted in the passage of five bills during the recently completed legislation session. With little explanation, the governor vetoed four of the bills. The bills that died on the governor’s desk would have required additional California Department of Forestry and Fire Protection (CDF) staffing, more fire engines and helicopters, and better local fire district reporting to the state fire marshal. The bill that did survive, AB 3065 (Kehoe), might be the one of most interest to planners. It requires CDF to review the safety elements of city and county general plans beginning in 2010.

A bill that would have required cities and counties to prepare economic impact reports for proposed big box stores that sell groceries received a veto from Gov. Arnold Schwarzenegger. During a flurry of activity in September, the governor also rejected a bill that would have created a pilot brownfield cleanup program and a measure making minor amendments to the California Environmental Quality Act. Schwarzenegger signed two other brownfield bills, as well as a number of measures endorsed by environmental groups, including a bill creating the Sierra Nevada Conservancy. Schwarzenegger’s rejection of the big box bill was expected. Organized labor supported the measure, SB 1056 by Sen. Richard Alarcon (D-Los Angeles). The bill would have required economic studies of stores that were proposed to have at least 130,000 square feet, with at least 10% of sales space devoted to nontaxable items. Alarcon and union allies directed the bill at Wal-Mart supercenters, which are stores of at least 200,000 square feet. Wal-Mart workers are not unionized, while most large grocery store chains have unions. Both labor and management at grocery store chains fear that supercenters will force existing supermarkets out of business. In his veto message, however, Schwarzenegger said the bill would “stifle market competition and expansion of employment.” “Local communities are already free to decide between rejecting or embracing any retail development,” Schwarzenegger said. “By requiring the approval of an economic impact report prior to approval of a development project that includes a ‘superstore retailer,’ this bill would create a system of costly hurdles that these retailers would need to overcome before opening a new facility in a city or county.” The Legislature passed three relatively significant brownfield bills this year, and the governor signed two of them. The measure that he rejected was SB 559 (Ortiz), which would have created a pilot project to streamline and coordinate the activities of local agencies, the Department of Toxic Substances Control and the Water Resources Control Board. Schwarzenegger said that while he appreciated the bill’s goal of better coordination among agencies, “this pilot project would create an unnecessary and redundant oversight program with significant costs. The California Environmental Protection Agency Site Designation Committee has already established much of what the author wants to demonstrate with her proposed pilot program.” The brownfield bills that Schwarzenegger did sign were AB 389 (Montañez) and SB 805 (Escutia). The Montañez bill was a compromise between developers and environmentalists. For developers, the bill reduces liability for landowners who had nothing to do with a site’s contamination. For environmentalists, the bill sets new rules in cases where additional contamination is found, and it requires regional water quality control boards to make their review processes more open to the public. Both the California Building Industry Association, and the Planning and Conservation League backed AB 389, although some environmental groups expressed doubts about the measure. The Escutia bill expands a provision in state law that permits a city to force cleanup of a contaminated site. The program was limited to infill sites of less than 5 acres with one owner. The new legislation eliminates the 5-acre restriction. The CEQA bill that the governor rejected was AB 3090 (Jerome Horton). The bill would have required the Governor’s Office of Planning and Research to amend CEQA Guidelines to reflect a 2001 state Supreme Court decision that said a city-sponsored ballot measure is not exempt from environmental review. Schwarzenegger said the most recent update of the Guidelines mentions the court case, , (2001) 25 Cal.4th 165. The governor signed two CEQA bills with greater implications. One measure, AB 2922 (Laird) permits the broader use of master environmental impact reports, and allows lead agencies to adopt mitigated negative declarations that tier off of a master EIR. The later provision is important because a 2002 court decision regarding the CEQA Guidelines suggested that only an EIR — and not a negative declaration — could tier off of a master EIR(see , January 2003). The other CEQA bill that Schwarzenegger signed was SB 1334 (Kuehl). It requires counties that determine that a project would result in the loss of oak woodlands to consider certain alternatives or mitigation measures. Probably the most significant piece of environmental legislation approved by the governor was AB 2600 by Assemblymen Tim Leslie (R-Tahoe City) and John Laird (D-Santa Cruz). The bill creates the Sierra Nevada Conservancy, a state agency that will have jurisdiction over about one-quarter of the territory in California, from just outside the City of Mojave to the Oregon border. During a signing ceremony on the banks of the Bear River, Schwarzenegger called AB 2600 “common sense legislation to preserve and protect our environment.” The new entity will not have authority to purchase land or easements, but it can provide funds to local agencies or nonprofit organizations for acquisitions. Goals for the new Conservancy include preserving “working landscapes” and boosting tourism. Sierra Nevada Alliance Executive Director Joan Clayburgh said, “For too long the region has not received adequate attention from the State of California … The new Conservancy would serve as a central roundtable for coordination and planning of conservation efforts throughout the Sierra Nevada and Cascade mountains, and would fund grants and projects across the region.” Two bills backed by advocates of housing element reform received Schwarzenegger’s signature. AB 2158 (Lowenthal) gives councils of government, cities and counties more say in determining regional housing needs allocations. Meanwhile, AB 2348 (Mullin) revises the criteria for potential development sites that can be counted toward meeting a local government’s fair share.

State legislation approved in 2001 permits a Southern California wholesale water agency to sell water directly to retail customers, the Second District Court of Appeal has ruled. The ruling was a victory for the Castaic Lake Water Agency over leaders of the Newhall County Water District and slow-growth advocates. The two sides are at war over the amount of water truly available to serve the Santa Clarita Valley in Los Angeles County (see , March 2004). The Legislature created the Castaic agency to acquire water and water rights, and to provide water at wholesale to the Santa Clarita Valley. In 1999, the agency approved a retail service agreement with the private Santa Clarita Water Company, which provided water service primarily in the City of Santa Clarita. A few weeks later, Castaic purchased all of the private company’s assets and shares. Four people — including Newhall County Water District Directors Lynne Plambeck and Joan Dunn, acting as individuals — filed a lawsuit challenging Castaic’s actions. A Los Angeles County Superior Court judge ruled for Castaic, but the Second District overturned that decision and sent the case back to the lower court. , (2001) 90 Cal.App.4th 987 (see , September 2001). Although the appellate court did not rule on the merits, the court said that if the water wholesaler merged with the private water company, it would violate Water Code § 12944.7, which created the Castaic agency. Less than two months after the Second District ruled, the Legislature approved and Gov. Davis signed AB 134 (Kelley). The measure amended Castaic’s enabling act to allow the agency to sell water at retail within a certain area, which, not coincidentally, matched the Santa Clarita Water Company’s service area. When the litigation returned to the Superior Court, Castaic’s four opponents maintained that the merger was still illegal under § 12944.7, subdivision (b). They argued that the statute permitted a retail sale by Castaic only via a contract with a company that was regulated by the Public Utilities Commission (PUC). The court agreed, finding that AB 134 actually imposed an additional hurdle to Castaic’s retail sale. The court ordered Castaic to stop selling water at retail. Castaic appealed, and this time the Second District sided with the agency. Castaic argued that the original provision in the enabling legislation that required a contract with a separate retailer subject to the PUC was irrelevant because of AB 134. The court agreed. “Newly enacted § 15.1 now authorizes the agency to sell water to the ultimate consumer within a specified geographic area ‘notwithstanding’ or the prerequisites to that authority in § 12944.7, subdivision (b), and the prohibition in § 15 of the agency enabling act,” Justice Richard Aldrich wrote for the unanimous three-judge panel. The more recently approved statute “necessarily controls,” he wrote. The intent of AB 134 was “to circumvent the hurdle to retail authority caused by the agency’s takeover of the water company,” Aldrich wrote. “Furthermore, the agency sponsored Assembly Bill 134 while it was embroiled in this litigation … We doubt the agency would have expended the time and resources to have the bill enacted merely to add another limitation to retail authority on top of § 12944.7, subdivision(b)’s, requirements.” The Case: , No. B161069, 04 C.D.O.S. 6840, 2004 DJDAR 9291. Filed July 29, 2004. The Lawyers: For Klajic: Jennifer Kilpatrick, (323) 852-1000. For Castaic: Barry Levy, Horvitz & Levy, (818) 995-0800.

Fifteen years ago this month, while the Giants and the A’s warmed up for Game 3 of the World Series at Candlestick Park, the Loma Prieta earthquake struck Northern California. Centered in the mountains between Santa Cruz and San Jose, the magnitude 7.1 temblor killed 62 people, the majority of whom were caught in the collapse of a freeway in Oakland. Less tragically, but maybe more worrisome, the earthquake cause a portion of the upper deck of the San Francisco-Oakland Bay Bridge to collapse. Caltrans put the Bay Bridge back together quickly, but follow-up studies soon identified hundreds of bridges across California that were vulnerable to collapse. Nearly all of the structures have been seismically upgraded or replaced since then, including three other toll bridges in the Bay Area, the Vincent Thomas Bridge in Los Angeles, and the San Diego-Coronado Bridge. The major exception is the eastern span of Bay Bridge —the very bridge that failed during the Loma Prieta earthquake. Although the current schedule calls for a new bridge to open in early 2011, even that date — more than two decades after the deadly earthquake — appears to be as squishy as the fill lining the bay. The Bay Bridge is the region’s workhorse, carrying about 280,000 vehicles per day. The plan is to retrofit the western span between Yerba Buena Island and San Francisco (work is mostly complete) and build an entirely new eastern bridge between the island and Oakland. Bay Area officials insisted on making the new bridge a “signature” structure. Engineers have designed a Self-Anchored Cable Suspension (SAS) bridge connecting to a “skyway” that reaches Oakland. The seismic upgrade project, however, has been problematic from the beginning. The latest round of troubles began in May, when Caltrans received bids for the single tower that is the hallmark of the proposed bridge. Actually, Caltrans received only one bid — for $1.4 billion using foreign steel, or $1.8 billion with domestic steel. Caltrans had estimated the contract to be worth $740 million. Immediately, Caltrans began re-examining project costs. In August, Caltrans issued a report the pegged the cost of a new eastern span at $5.1 billion — up from $2.6 billion only three years earlier and up from $1.3 billion in 1997. Bechtel Infrastructure Corporation, working for the Metropolitan Transportation Commission (MTC), corroborated Caltrans’ newest estimate. Moreover, Caltrans and Bechtel concluded that seeking new bids or changing the design would only delay the project by one to four years and save little, if any, money. The reasons for the quadrupling of estimated costs are myriad: A fancy bridge that is not easy to construct; poor original estimates by Caltrans, which omitted inflation and contingency factors; a rapid rise in materials cost; and industry consolidation. Meanwhile, the number of public agencies and officials willing to accept responsibility for the mess is nil. Caltrans and the Schwarzenegger administration blame the elaborate bridge design and factors beyond the government’s control. The MTC and Bay Area lawmakers point out that Caltrans has been in charge of the project since Day 1. “Fundamentally, it’s the full and complete responsibility of the state Department of Transportation, by law and by practice,” MTC spokesman Randy Rentschler said of the seismic project. Still, Rentschler conceded that MTC has been “heavily involved on the policy side.” In fact, Caltrans let MTC pick the design. Where the project is headed is uncertain. The single bid for the tower from a joint venture of American Bridge, Nippon Steel Bridge and Fluor Corporation was scheduled to expire on September 30 (a few days after ’s printing deadline). Because the state does not have enough money to let the contract, it was expected that the Schwarzenegger administration would ask for a bid extension to allow state lawmakers to develop a funding solution. “If there’s no funding plan in place for that tower, we can’t award the contract,” said Caltrans spokesman David Anderson. But, he added, “It wouldn’t be financially sound to rebid the contract.” While an extension of the bid may be the administration’s preferred alternative, however, it is anything but a sure bet that the bridge builders will stick to the price they quoted in May, especially considering the continuing increase in steel prices. When Caltrans published its most recent report, Gov. Schwarzenegger essentially declared the problem to be the Bay Area’s. He proposed giving the project to the Bay Area Toll Authority (an arm of MTC) and letting that agency siphon funds from other regional transportation projects to pay for the bridge cost overruns. The governor’s proposal also called for a regional ballot measure that would ask voters to shift one-third of the current $3 toll on Bay Area bridges from other transportation projects to the seismic work. Schwarzenegger even tried to stir regional rivalries in an effort to win Southern California lawmakers’ support. The MTC and Bay Area legislators responded in the final week of the legislative session with a stop-gap measure that would have authorized the Toll Authority to provide financing in order to raise enough cash for Caltrans to let the contract. However, the Legislature adjourned on August 28 without approving any fiscal plan. The governor’s approach infuriated Bay Area officials. Their ire rose further when Business, Transportation and Housing Secretary Sunne Wright McPeak said that the Legislature’s failure to adopt a long-term financing strategy meant “construction will not go forward.” New state Senate President Pro Tem Don Perata (D-Oakland) told the , “We have always been willing and continue to be willing to accept our fair share of the responsibility. We’ve always paid half . But we can’t pay half when Caltrans can’t control costs. In mid-September, the California Transportation Commission reviewed the situation but offered no solution. “Until the Legislature comes back in session, there really is no venue to figure out how to raise the money,” the MTC’s Rentschler said. In the meantime, MTC has urged Caltrans to award the contract. Bay Area officials offer Bechtel’s conclusion as support. “Caltrans’ analysis indicates that if achieving seismic safety for the motoring public is the primary objective, awarding the current bid is the most effective option,” Bechtel concluded. “Further, Caltrans’ comparative evaluation indicates that there appears to be little opportunity for significant cost savings by rebidding the current design or by redesigning the current project to a cable-stayed system bridge. The review of Caltrans’ comparative assessment of these options and associated assumptions indicates that Caltrans’ conclusions are reasonable.” Contacts: Metropolitan Transportation Commission: www.mtc.ca.gov Caltrans tollbridge seismic safety retrofit program report: www.caltrans.ca.gov/tollbridgeretrofitreport.pdf

Contra Costa County Extension of half-percent tax, from 2009 to 2034 Expected revenue: $2 billion Distribution: Transit, 31.7% Highways, 26% Local subventions (based on population and road miles), 20.1% Roads, 4.8% Other (livable communities, transportation for kids, congestion management, etc.), 16.9% Key projects: Fourth bore for Caldecott Tunnel on Highway 24; BART extensions Marin County New half-percent tax, from 2005 to 2025 Expected revenue: $331 million Distribution: Transit, 55% Local subventions, 26.5% School congestion and access, 11% Highways, 7.5% Key projects: Improved bus service, bikeways, sidewalks and pathways; carpool lanes on Highway 101 in San Rafael Sacramento County Extension of half-percent tax, from 2009 to 2039 Expected revenue: $4.7 billion Distribution: Transit, 38.25% Local subventions, 38% (three-fourths by population, one-fourth by road miles) Highways, 12% Other (bicycle, pedestrian and streetscape projects, senior and disabled programs, smart growth, etc.), 11.75% Key projects: New road connecting U.S. 50, Highway 99 and Interstate 5; expanded light and commuter rail San Bernardino County Extension of half-percent tax, from 2010 to 2040 Expected revenue: $6 billion Distribution: Highways and interchanges, 40% Roads, 20% Local subventions, 20% Transit, 10% Senior and disabled programs: 8% Traffic management system: 2% Key projects: I-10, I-215 and Cajon Pass widening; numerous freeway interchanges San Diego County Extension of half-percent tax, from 2008 to 2048 Expected revenue: $14 billion Distribution: Highways, 42.4% Local subventions, 33% (two-thirds by population, one-third by road miles) Transit, 16.5% Congestion relief, 8.1% Key projects: Corridor improvements (carpool and managed lanes, bus rapid transit, rail, etc.) on I-5, I-15 and I-805 corridors San Mateo County Extension of half-percent tax, from 2009 to 2034 Expected revenue: $1.5 billion Distribution: Transit, 30% Highways, 27.5% Local subventions, 22.5% Rail grade separations, 15% Bike and pedestrian facilities, 3% Alternative congestion relief, 1% Key projects: Improved Caltrain service; improvements to corridors for I-280 and Highways 92 and 101 Santa Cruz County New half-percent sales tax, from 2005 to 2035 Expected revenue: $577 million Distribution: Highways, 66.6% Local subventions, 19.5% Transit, 5% Other (pedestrian and bike facilities, etc.), 8.9% Key project: Widening Highway 1 (would receive all money designated for highways) Solano County New half-percent, tax from 2005 to 2035 Expected revenue: $1.4 billion Distribution: Highways, 47% Transit, 25% Roads, 15% Local subventions, 10% Safety projects, 2% Key projects: I-80/I-680/Highway 12 interchange enhancement; freeway corridor improvements Sonoma County New quarter-percent tax, from 2005 to 2025 Estimated revenue: $470 million Distribution: Highways, 40% Roads, 40% Transit, 15% Bicycle routes, 4% Key projects: Widening Highway 101 (would receive all money designated for highways); improved freeway interchanges Ventura County New half-cent tax from 2005 to 2035 Estimated revenue: $1.5 billion Distribution: Highways and roads, 40% Local subventions (based on population), 40% Transit, 20% Key projects: Improvements to Highways 23, 101, 118 and 126