The First District Court of Appeal has upheld the City of Eureka's environmental impact report for a private school playground in a residential neighborhood. The city adopted the EIR for the playground after volunteers at Redwood Christian School had already built the facility, in violation of an existing conditional use permit (CUP) for the school. The court rejected neighbors' argument that the environmental study amounted to after-the-fact rationalization. Instead, the court found the EIR "accurately describes the project as the application to modify the existing 1980 CUP for the school. While any alleged code violations in the construction of the playground may have been relevant to the city's consideration of the variance requested, it was not a CEQA consideration." Eureka Church of the Nazarene opened Redwood Christian School in 1980. Located in Eureka's Prairie Addition neighborhood, the school serves about 70 students in grades kindergarten through eight. The CUP approved in 1980 requires "that all school related activities be conducted within the buildings or at neighborhood playgrounds." Apparently unaware of this restriction, volunteers in 2002 built an outdoor playground of about 2,600 square feet. It included a prefabricated play structure, surrounded by woodchips and a four-foot-high wall. Neighbors complained, and city officials in July 2003 notified the school that the playground was unauthorized. Use of the play area was suspended. The church then applied for a use permit modification. In March 2005, the City Council certified an EIR for the project, and approved the use permit modification and a correlated zoning variance. The neighbors then sued, arguing that the environmental review was inadequate and that the project violated the city's zoning ordinances. A Superior Court judge ruled for the city, a decision upheld by a three-judge panel of the First District, Division Five. The playground opponents made a number of CEQA claims. First, they charged that the city improperly assigned EIR preparation to the project applicant and then "rubber stamped" the document. Indeed, the church's consultant did prepare the EIR, including a noise study. But the city hired its own consultant (Environmental Science Associates, or ESA) to review the document, and the City Council made findings that the EIR represented the city's independent judgment and analysis. "We find nothing improper in the applicant's preparation of the draft document," wrote Contra Costa Superior Court Judge Terence Bruiniers, sitting by assignment on the appellant court bench. The court also rejected the argument that the EIR was improperly skewed to favor an "illegal" activity, concluding the issue was beyond the scope of CEQA. "Prior code or zoning violations unrelated to the current application need not be considered in evaluating a new application," Bruiniers wrote in a footnote, citing Baird v. County of Contra Costa , (1995) 32 Cal.App.4th 1464 (see CP&DR Legal Digest , March 1995). Regarding project impacts, the playground opponents argued the EIR inadequately addressed noise, aesthetics, historic resources and safety. The opponents contended the EIR's noise analysis was "technically incompetent" and conflicted with a study the neighbors commissioned. But the court noted that ESA's review found that the church consultant's noise study followed a standard approach and accurately characterized children at a playground. "Our duty is not to pass on the validity of the conclusions expressed in the EIR, but only on the sufficiency of the report as an informative document," the court ruled. "The relevant issue is only whether the studies are sufficiently credible to be considered as part of the total evidence that supports the findings." Thus, the court upheld the city's conclusion, based on the church's noise study, that the playground would not have a significant impact on noise levels. The opponents argued that the EIR failed to analyze the playground's impact on the Prairie Addition's historic character. The neighbors' own consultant had identified 53 structures in the 30-block neighborhood as historically significant. However, the court noted that there was no evidence the project would damage or impair any of those structures, and that there was no evidence the neighborhood itself was an historic resource. Opponents argued that the playground structure was "enormous and garish" and inappropriate for the site. But the court ruled the opinion didn't count for much. "The possibility of significant adverse environmental impact is not raised simply because of individualized complaints regarding the aesthetic merit of a project," Bruiniers wrote. "Here, the city determined that the project's aesthetic impacts would be insignificant, and EIR contained, as required, statements addressing the reasons for that conclusion." As to safety, the court accepted the city's argument that the safety of equipment installed on a private playground is not a CEQA issue. In the unpublished portion of the opinion, the court ruled that project opponents offered no proof that the playground was built within the setback prescribed by the city code. And, noting that playgrounds and play fields are common on residentially zoned properties in Eureka, the court ruled the variance was not improper. The Case: Eureka Citizens for Responsible Government v. City of Eureka , No. A113289, 07 C.D.O.S. 1221, 2007 DJDAR 1523. Filed January 8, 2007. Certified for partial publication February 1, 2007. The Lawyers: For Eureka Citizens: Andrea Matarazzo, Diepenbrock Harrison, (916) 492-5000. For the city: David Tranberg, city attorney, (707) 441-4147. For Eureka Church of the Nazarene: Richard Smith, (707) 444-9281.

The water supply analysis for one of the largest housing developments ever approved in the Central Valley has been rejected by the state Supreme Court. The court faulted the water study in the environmental impact report for the 20,000-unit Sunrise-Douglas community plan outside Sacramento because the study did not adequately describe long-term water sources and the impacts of using those sources. “While the EIR identifies the intended water sources in general terms, it does not clearly and coherently explain, using material properly stated or incorporated in the EIR, how the long-term demand is likely to be met with those sources, the environmental impacts of exploiting those sources, and how those impacts are to be mitigated,” the state’s highest court ruled. The court also rejected the EIR’s analysis of the impacts of groundwater pumping on the Cosumnes River, which provides critical habitat for federally protected steelhead trout and fall-run Chinook salmon. Sacramento County approved the community plan for 6,000 acres of pastureland south of Highway 50 in 2002 (see CP&DR Local Watch , August 2002). The plan calls for approximately 20,000 housing units and nearly 500 acres of commercial and office development. At the same time, the county also approved the 10,000-unit Sunridge specific plan covering nearly half of the community plan site. The property lies within the City of Rancho Cordova, which incorporated a few months after the county approved the plans and zoning. The city has been implementing the plans. Angelo Tsakapoulos’s AKT Development is the primary developer. Residents of the area and environmentalists sued the county (the city has since become the defendant) over the EIR for the plans. The lawsuit centered on the water supply, as local residents feared the impacts of large-scale groundwater pumping. Essentially, the project called for using a well field about four miles south of the plan area for short-term supplies. Long-term, the project would be supplied by the wells and Sacramento County Water Agency’s new diversion of Sacramento River water. A Sacramento County superior court judge ruled against the project opponents. In an unusually terse opinion, the Third District Court of Appeal concluded the opponents were guilty of “misstatements and omissions” and rejected the opponents’ contentions (see CP&DR Legal Digest , April 2005, March 2005). But in a 6-1 decision, the state Supreme Court found it was the county — not the opposition — that was less than forthcoming. “The principal disputed issue,” Supreme Court Justice Kathryn Mickle Werdegar wrote for the majority, “is how firmly future water supplies for a proposed project must be identified or, to put the question in reverse, what level of uncertainty regarding the availability of water supplies can be tolerated in an EIR for a land use plan.” Justice Werdegar laid out the evolution of case law at the appellate court level. The first case was Santiago County Water Dist. v. County of Orange , (1981) 118 Cal.App.3d 818, in which the court rejected an EIR for a mining project because the EIR did not address the impacts of supplying the mine with up to 15,000 gallons of water per day. The next case in line was the landmark Diablo Grande decision, Stanislaus Natural Heritage Project v. County of Stanislaus , (1996) 48 Cal.App.4th 182. In that case, the court threw out an EIR for the 5,000-unit Diablo Grande project that listed possible long-term water supplies but deferred analysis of the water acquisitions until later phases of project development (see CP&DR Legal Digest , September 1996). The next case was Napa Citizens for Honest Government v. Napa County Bd. of Supervisors , (2001) Cal.App.4th 342, in which the court disapproved an EIR that did not disclose possible alternative water sources and the impacts of using them (see CP&DR Legal Digest , September 2001). Finally, in Santa Clarita Organization for Planning the Environment v. County of Los Angeles , (2003) 106 Cal.App.4th 715, the court rejected an EIR that relied on “paper water” from the over-subscribed State Water Project (see CP&DR Legal Digest , April 2003). While these decisions provide no definitive standard, according to state Supreme Court, they provide four principles: • The California Environmental Quality Act (CEQA) is not satisfied unless decision-makers are presented with sufficient facts to evaluate how water will be supplied to a project. • An EIR for a project to be built over a number of years cannot be limited to water supply for the first few years. • Future water supplies must “bear a likelihood of actually proving available.” • When water sources are uncertain, there must be a discussion of possible replacement sources or alternatives, and the impacts of those contingencies. It is not enough to say that development will not proceed if anticipated water fails to materialize. The court also discussed legislation of recent vintage. In 1995, lawmakers approved SB 901 (Costa), requiring cities and counties considering a large development proposal to obtain a “water supply assessment” from the appropriate water supplier. Six years later, the Legislature approved two more bills: SB 221 (Kuehl) requires a city or county considering a residential subdivision of at least 500 units to obtain written verification that adequate water is available for the project and other planned uses for 20 years. Meanwhile, SB 610 (Costa) attempts to close loopholes in SB 901 and emphasizes the importance of 20-year urban water management plans (see CP&DR , October 2001, October 1995). After laying out this background, the court then considered the specifics of the Rancho Cordova project. The community and specific plans contemplate the use of 5,000 to 10,000 acre-feet of water from the well field during the near-term. (These wells are serving the 1,800 houses built since project approval.) Opponents contended the EIR did not adequately describe competing uses for this groundwater, but the court was satisfied with this portion of the environmental study. Long-term supply, however, was a different story. According to the court, the EIR discussed long-term needs — based on the county general plan — within the county water agency’s “Zone 40.” This zone encompasses much of southern Sacramento County, including the project area. The EIR also addressed water sources and the Sacramento Water Forum, a collection of agencies and stakeholders that adopted a plan for competing American River water uses. These estimates of demand and supply, though, were not consistent throughout the EIR, the court noted, and it appeared that a supply gap for Zone 40 remained. “The general answer given in the EIR, and echoed by real parties and Rancho Cordova, is that the new surface water supplies are to be used conjunctively with groundwater supplies. But this explanation is vague and unquantified,” Werdegar wrote. “How much groundwater, existing and new, will be used with how much new surface water? In what combinations will these sources be used during wet and dry years, respectively? No such description of planned future water use appears in the FEIR.” The EIR appeared to tier off of a future analysis of what was at the time a pending water agency plan for Zone 40. But an EIR may not tier of off a document that doesn’t exist. The Rancho Cordova project EIR, the court ruled, could have tiered off of an earlier analysis for the Water Forum proposal. However, the EIR’s relationship to the Water Forum proposal was unclear, even though the EIR included a discussion of impacts and mitigations in the Water Forum EIR. “The reader attempting to understand the county’s plan for providing water to the entire Sunrise Douglas development is left to rely on inference and speculation,” Werdegar wrote. Developers pointed to a condition of project approval that prohibits approval of entitlements if water is not available. But the court dismissed the argument and cited Stanislaus Natural Heritage: “‘It must be borne in mind that the EIR must address the project and assumes the project will be built.’” As for impacts of groundwater pumping on the Cosumnes River, the court found that the EIR’s brief dismissal of concerns expressed by environmentalists and wildlife agencies was not supported by substantial evidence. In a dissenting opinion, Justice Marvin Baxter said the majority was imposing requirements beyond those contained in CEQA or the Water Code. “Under the majority’s new rule … once a city or county approves a general plan, it could not approve a project in furtherance of that plan unless or until it had secured water sources for build out of the entire general plan. Northing in CEQA requires such a result,” Baxter wrote. To this, Werdegar responded, “ ong-term local water planning is not a burden that must be taken up anew, for CEQA purposes, each time a development is proposed; rather, cities and counties may rely on existing urban water management plan’s future demand accounting.” The Case: Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova , No. S132972, 07 C.D.O.S. 1131, 2007 DJDAR 1453. Filed February 1, 2007. The Lawyers: For Vineyard Area Citizens: Stephan Volker, (510) 496-0600. For the city: Julia Bond, Meyers, Riback, Silver & Wilson, (510) 808-2000. For Sunrise Douglas Property Owners Association: James Moose, Remy, Thomas, Moose & Manley, (916) 443-2745.

Anaheim officials have sided with Disneyland and rejected a proposal from SunCal to develop 1,275 condominiums and 225 affordable apartments on 26 acres in the city's resort district. Disney lobbied hard to block the project, which would abut Disney property that could eventually accommodate a third theme park. Disney representatives said the housing would be out of place in the 2.2-square-mile resort district, which has rebounded with new hotels and restaurants during the last decade. The City Council last year amended the resort district plan to permit residential uses. However, the Planning Commission early this year rejected SunCal's plan for 1,500 units on the Haster Street site of two existing mobile home parks and a strip mall. SunCal appealed, but the City Council divided 2-2, with Councilman Lucille Kring abstaining because of a conflict. The split vote means the Planning Commission decision stands. Affordable housing advocates and labor unions endorsed the project, saying it makes sense to provide housing in the resort district, where more than 20,000 people work. Indian casinos may be big business, but they are not going to provide significant revenues for the State of California, according to a new report by the Legislative Analyst's Office (LAO). In 2006, Indian casinos took in about $7 billion, meaning only Nevada has a larger casino industry. Nine recently negotiated — but still unratified — compacts between the state and Indian tribes attempt to cut the state a larger slice of casino revenues, primarily to fund transportation, and the governor's budget for the 2007-08 fiscal year assumes casino revenues will increase to $539 million, up from $33 million this year. The LAO figures it will take three to ten years for the state revenues to grow so much, and even then the total amount will be relatively small. "Even assuming that all of the 2006 compacts are ratified and a few more similar compacts are ratified in the future, we expect that compact-related sources will provide the general fund with less than 0.5% of its annual revenues for the foreseeable future," the LAO said. The report, "California Tribal Casinos: Questions and Answers," is available on the LAO website: www.lao.ca.gov . Madera County has settled a dispute with the Chukchansi tribe over construction of a hotel and parking garage that the tribe is building next to an existing casino. The tribe agreed to pay the county, the Yosemite Unified School District and local families about $13 million over 10 years to mitigate public safety and other impacts. In exchange, the county agreed to drop three lawsuits it had filed against the tribe. Madera County and the tribe disagreed over whether the county has jurisdiction over the hotel and parking structure, which the county says is not located on federal trust land. In November 2006, the county attempted to halt construction at the site and sought a restraining order to block the project. Under the agreement, the county dropped its claim of jurisdiction. Under federal law, Indian tribes may have casinos only on reservations or land held in federal trust. Local governments have no jurisdiction over development in those locations. The Chukchansi Tribe's actual casino is on federal trust land along Highway 41. The Bureau of Indian Affairs has approved a proposed landfill on the reservation of the Cortina Band of Wintun Indians. The 400-acre landfill site is in the hills of Colusa County, west of the towns of Williams and Arbuckle. Colusa County and local farmers fought the proposed garbage dump for years because of concerns over truck traffic on Highway 20 and because of potential groundwater contamination. However, the Board of Supervisors dropped its lawsuit over the dump last year, saying the county could no longer afford the litigation. Earthworks Industries, based in Vancouver, British Columbia, will develop the landfill with the Cortina Band. The dump could accept up to 1,500 tons of trash daily for decades, and could serve a portion of the Bay Area. Redevelopment reform legislation approved in 2006 has apparently taken its first victim. San Bernardino County dropped plans to form two redevelopment project areas, one covering Bloomington and the other for Devore and Muscoy. The decision to discontinue redevelopment efforts is at least partly due to a new legal definition of "blight." Senate Bill 1206 (Kehoe) tightened the definition of blight and placed a number of new requirements on the formation of redevelopment project areas (see CP&DR , October 2006 ). The legislation would require the county "to start the redevelopment formation process anew," Redevelopment Agency Executive Director Kathy Thomas wrote in a report to the Board of Supervisors, which pulled the plug on redevelopment. Besides the new rules, there was little public support for redevelopment, especially in Bloomington, where an incorporation drive is under way. The county had spent $834,000 for the two project area formation processes. Seal Beach has repealed a ban on three-story houses in the Old Town area, west of Pacific Coast Highway. The City Council last year approved the ban to preserve the district's aesthetics and protect views. Unhappy property owners then gathered enough signatures to force a referendum, and initially the City Council set the matter for an election. But in February, the City Council voted 4-1 to repeal the ordinance. Instead, city officials are drafting an ordinance that regulates floor area ratios. The trial court judge who ruled for a San Diego developer in an inverse condemnation case has been rebuked by the Commission on Judicial Performance for not disclosing his relationship with the developer's attorney. San Diego County Superior Court Judge Vincent P. DiFiglia ruled that City of San Diego planning for a new airport and a border traffic plan amounted to inverse condemnation on a business park being developed by Roque de la Fuente. A jury then awarded the developer $94.5 million. However, the Fourth District Court of Appeal last year ruled there was no taking and threw out the award (see CP&DR Legal Digest , November 2006). DiFiglia, who has since retired and now acts as a private judge, recused himself during a later phase of the trial — after the press reported his receiving gifts from the developer's attorney, Vincent Bartolotta, Jr. The Commission on Judicial Performance found that DiFiglia "had a long-term personal relationship with Mr. Bartolotta" and said DiFiglia had received private admonishment in 1992 for not disclosing the relationship. In addition, DiFiglia's failure to disclose his past employment with the city attorney's office was also contrary to the Code of Judicial Ethics, according to the commission. Judge DiFiglia's conduct "was, at a minimum, improper action," the commission concluded in its public admonishment. The ongoing redevelopment of the former George Air Force Base in Victorville received a boost in February when Newell Rubbermaid signed an agreement to lease 400,000 square feet of warehouse and distribution space, and acknowledged plans to lease an additional 600,000 square feet of space. One of many California military bases to close during the 1990s, Norton is now called the Southern California Logistics Airport. As at a number of bases, local officials planned for industrial reuse; industrial redevelopment at George, however, may be further along than at any other base that closed during the period. The airport has become a major logistics hub because of its air, rail and ground connections. Goodyear, M&M/Mars, Nutro Products and ConAgra Foods have all established large distribution centers at the former base during the last few years, but the Rubbermaid project could be the largest. Rubbermaid signed a 10-year lease agreement with master developers Sterling Enterprises and DCT Industrial Trust, a joint venture that will provide a build-to-suit facility. Art Garcia, director of real estate and property for Newell Rubbermaid, called the site "an ideal location."

Voters in the northern Solano County city of Dixon will decide in April on a project that could change the nature of town: A horse racing track and entertainment center capable of handling events for up to 50,000 people, plus more than 1 million square feet of hotel, entertainment, retail and office development. Dixon Downs would be the first major horse racing facility built in California since the 1940s, and proponents envision the facility becoming one of the nation's best. City officials have endorsed the project, saying it will bring thousands of jobs and millions of dollars to town, and will spur further development in a dusty, lightly developed corner of town. But opponents � who forced a referendum election on the project � say the project is simply too much for the town of about 17,500 people. They worry not only about traffic and noise from the facility, but about the social implications of gambling. "It's really not a fit for this little town. It would be a big change," said Gail Preston, a leader of Dixon Citizens for Quality Growth, which organized the referendum. Founded in about 1870, Dixon was an agricultural town for more than a century. More recently, the city has become more of a bedroom community for workers at the nearby University of California, Davis, and for commuters to Sacramento and even the Bay Area. Located on Interstate 80 on the edge of the Central Valley, Dixon has seen its population double over the last 20 years. The City Council approved Dixon Downs on a 4-1 vote in October 2006 after about six years of planning, negotiations and study. Magna Entertainment Corporation, a horse track operator based in Ontario, Canada, first approached city officials in 2000 with an eye on a portion of Dixon's 640-acre Northeast Quadrant specific plan, which calls for highway commercial, industrial and office uses. "It was pretty clear from the outset in terms of size and complexity � it was not going to be a typical land use entitlement process," recalled City Manager Warren Salmons. "It took a couple of years to evolve the entire complex. It's an entertainment, retail, mixed-used project." Magna's proposal calls for a two-phase project. The first phase would contain the track, a grandstand and pavilion, barns and training facilities for up to 1,400 horses, and temporary living quarters for trainers, grooms and jockeys. The second phase would have a conference center and hotel, 750,000 square feet of retail development, and up to 200,000 square feet of offices. The race track and pavilion could be used not only for horse racing, but also for concerts and festivals. There could be an unlimited number of "tier 1" events for up to 6,800 people. "Tier 2" events for 6,800 to 15,000 people would be limited to 25 per year, and there could be one event each year for up to 50,000 people. A fiscal and economic analysis prepared for the city by Goodwin Consulting Group of Sacramento found that the Dixon Downs project at full build-out would provide about 2,900 jobs and spin off another 600 jobs. Those are big numbers in a city that currently has about 5,300 jobs, but development of the site under the original specific plan would actually create more employment: about 4,100 direct jobs plus another 1,500 spin off jobs. In addition, jobs under the previous plan would be higher paying because of the heavy emphasis on light industrial uses. However, Goodwin estimated that Dixon Downs would build out in 15 years, while development of the original specific plan for the site would take twice as long. Salmons noted that in 12 years, the only significant project built in the specific plan area is a Wal-Mart store. The Goodwin study also estimated that Dixon Downs would result in an extra $3 million in city revenues � about 10 times the amount produced by light industrial and office development. Project opponents do not believe the numbers, in part because they doubt large retail components will get built. Preston noted that Vacaville, only a few miles away, already provides regional retail outlets and more is planned. "We think it's a farce," he said, citing the Goodwin study's conclusion that development under the original plan would be economically superior. Preston also expressed concerns about the social implications of gambling, such as gambling addiction and crime. Plus, although there would be only about 100 horse meets a year, "a 5,000-stool bar" would be open all year, he said. Indeed, the pavilion would provide for off-track betting. Opponents also fear Magna will bring slot machines to the facility, although slots are not contemplated in the approved project. For years, horse track operators, including Magna, have pressed the state hard for approval of slots. Dixon Mayor Mary Ann Courville said opponents' concerns are overstated. She, other city officials and some members of the public toured other Magna tracks, including Golden Gate Fields in Albany, and came away very impressed. "People were there enjoying the day � families and kids," Courville said. Courville foresees the horse track putting Dixon's name on the map nationally and even internationally when big-time races are broadcast worldwide. Salmons, a former planner in Petaluma and Vallejo, said the Dixon Downs project would jump-start the infrastructure in the larger specific plan area and serve as a catalyst for more development. Of course, all this development will generate a great deal of traffic on both I-80 and nearby roads. The Dixon Downs environmental impact report identifies traffic and air quality as areas that will suffer significant, unmitigated impacts. In November, the City of Davis and a tomato canning business in Dixon sued the city over traffic. Davis officials contend the EIR does not acknowledge that I-80 would be at a total gridlock before and after large events at Dixon Downs, forcing motorists onto city streets. "Dixon would receive all the revenue benefits from Dixon Downs, while the costs would be spread to nearby cities and unincorporated areas," Davis City Attorney Harriet Steiner said. The four referendums will appear during a special election April 17. The measures individually address the general plan amendment, specific plan amendment, rezoning and development agreement. If voters reject the project, said Salmons, "the community will go on. It will be a different future." Contacts: Warren Salmons, City of Dixon, (707) 678-7000. Dixon Downs project website: www.thecityofdixon.com/dixon/DixonDowns/DixonDownsHomePage.html . Dixon Citizens for Quality Growth: www.dumpthedowns.org .

California is full of prime infill development locations, but it’s also full of freeways. And more often than not, the two go together. Decades ago, the freeway system was built through existing urban areas and emerging suburban areas. Today, the old commercial strips next to the freeways have a lot of underutilized land, including surface parking lots. These are frequently the areas that have been targeted for infill development – usually either condominium projects or mixed-use with residential and retail. Now a new study from the Institute of Preventive Medicine at the University of Southern California suggests that this is not a great idea for the residents themselves – especially if they are children. The study, published in The Lancet ( www.thelancet.com ) in January, found that children in the Los Angeles area who live within 500 meters of a freeway (about 550 yards) have diminished lung capacity compared with children who live more than 1,500 meters away from a freeway (about a mile). The study’s authors (there are no less than 11 of them) warned, in particular, that an expected threefold increase in truck traffic over the next 20 years holds the potential to increase greatly the risk of lung problems in children who live near freeways. The study has generated a lot of publicity in urban planning circles, especially in California, and it has begun to call into question the common strategy of putting infill development close to the freeways in urban areas. At the very least, advocates of low-density greenfield development are likely to use the study to promote their cause. Yet, given land constraints and traffic congestion – especially in Southern California – further infill development near freeways seems inevitable if not common. Actually, the study’s conclusions don’t address the question of whether or not to locate residences near freeways. Rather, they focus on possible changes in policies to reduce air pollution. The study’s authors concluded that “staying even” by reducing emissions enough to offset additional traffic – the trend of the last 30 years – won’t be enough to protect children’s health. We will have to come up with ways to create a net reduction in emissions even if traffic continues to increase, which seems inevitable. The authors also focus on the question of residences located close to freeways in poor neighborhoods, and policies that might deal with that issue. While acknowledging that all children who live close to freeways are at risk, the researchers emphasized that the “double whammy” of living freeway-close in a poor neighborhood – which is more likely to have air pollutants in the first place – places poor kids particularly at risk. The authors suggest that air pollution laws might need to be changed to put greater focus on local hot spots as well as a reduction in regional emissions. From a planning perspective, classic McHargian geographical analysis would suggest that we simply place areas near freeways off-limits for residences from now on. (That’s assuming the research results are for real, which they probably are.) But can planners really put all other considerations aside in order to protect this one aspect of public health? Even as planners are beginning to consider issues of public health, they are still under tremendous pressure – especially from housing element law – to identify locations for high-density housing and make it easier for such projects to get built. This is especially true in both L.A. and the Bay Area, where many cities are smaller, older, mostly built-out suburbs near freeways. Planners in greenfield cities are used to this kind of bind – having to meet environmental goals (such as protecting endangered species) imposed by the state and federal governments while at the same time having to meet state-mandated housing goals. But at least those greenfield cities have the option – admittedly unpopular politically – of creating higher-density projects in those locations not knocked out by environmental regulations. Older suburbs don’t have this alternative. Most of their available land is already slated for high-density development and most is close to freeways. Beyond that, the implicit environmental justice concern undercuts one of infill development’s most compelling policy arguments, which is about environmental quality. Dense infill may create local traffic congestion, but it reduces overall regional vehicle miles traveled and therefore improves regional air quality. But what if regional air quality matters less than we think, and local air quality matters more? Then infill looks less attractive. The more you think about this issue from a planner’s perspective, the more it looks like a classic conflict between regional benefits and local impacts. For decades, planners have dealt with the question of how to deal with landfills or nuclear power plants – noxious or high-risk facilities that provide a regional benefit thinly spread across the entire population but have a potentially devastating impact on neighbors. Usually, the rationale for building such facilities is that the regional benefit trumps the local impact. Is it possible that freeway-close infill serves the same purpose? We need more housing and there aren’t many places to put it except near freeways. We need to reduce overall emissions; dense infill development is a necessary part of the fix. We need to build more housing near transit, but most new transit is being built along existing transportation corridors, and mostly these are freeways and existing rail lines (which also carry a lot of freight traffic). It makes no sense to locate dense development far away from these corridors. These are pretty compelling arguments for infilling freeway-close locations – you can picture the statement of overriding consideration language in the environmental impact report – except for one thing: In this case, the offending project isn’t a power plant or a prison. It’s a residential development that is actually housing the very people whose health is supposed to be protected by public policy. Are planners really going to make decisions about how close to a freeway somebody can live? This is definitely a judgment call involving the kind of risk-benefit analysis that public health officials are used to dealing with but planners are not. The headlines all suggested that we shouldn’t let people live within 500 meters of a freeway. But the research team didn’t analyze all possible distances and determine that 500 meters was safe. Rather, the researchers picked four different buffers – 0-500 meters, 500-1000 meters, 1000-1500 meters, and more than 1500 meters – and examined the lung condition of children in each zone. It’s clear that further away is safer. But it’s not clear how far away is safe enough. Of course, the real problem here is not that the houses are close to the freeways, but that transportation fuels of all kinds are among the biggest polluters in our world. We’re gradually switching to cleaner-burning fuels and many policy initiatives at the federal and state level are pushing us even faster on that front (see , February 2007). Will living near a freeway present the same kind of risk 20 years from now as today? That all depends on how quickly we switch fuels. In the meantime, though, planners are placed in the tough position of making the kinds of judgments about human health that are typically the purview of public health officials. In the rarified world of state or federal policymaking, these kinds of judgments are made all the time by public health officials and are not subject to much grassroots scrutiny. There are no local town hall meetings about the acceptable health risks of a new product or fuel. In the emotion-laden world of local land use decision-making, these kinds of risk-benefit judgments become much tougher. It will be very difficult for planners and local officials to argue successfully that, on balance, we should take a risk because society is better off if we put some kids into infill housing near freeways.

Correction . A story in the December edition regarding downtown Stockton contained two inaccuracies. Weber Point Event Center is 10 acres, not 17. Also, the 156 apartments for senior citizens on the upper floors of the Hotel Stockton have been filled since 2005.

COURTLAND _ In a precedent-setting decision, a state panel has overturned Yolo County’s decision to permit development of 162 housing units within the Sacramento-San Joaquin River Delta and at the base of a levee of questionable integrity. The vote was closely watched as a measure of state and local commitment to the Delta and flood safety. The Delta Protection Commission rejected the Old Sugar Mill specific plan that Yolo County had approved last fall for 105 acres in the unincorporated town of Clarksburg. The 15 members of the commission (composed of local elected officials, special district representatives and state appointees) who heard the matter during a January 25 hearing that lasted more than six hours were divided over the project, but the majority were troubled by the housing component of the mixed-use plan. The 1992 Delta Protection Act designates nearly 500,000 acres in five counties as the Delta’s “primary zone,” and an outer 240,000 acres as the “secondary zone.” The statute prohibits urban development within the primary zone unless proponents can show the development would not harm agricultural operations, wetlands or riparian habitat, water quality, migratory birds or public access. “The primary zone is designated for the protection of agriculture,” said Patrick Johnston, a commissioner and former state senator who authored the Delta Protection Act. Project supporters undertook “tortured efforts” to justify the inclusion of housing in an agricultural area, he said, adding, “To put housing there and say we didn’t affect agriculture turns the argument on its head.” Commissioner Katherine Kelly, chief of the Department of Water Resource’s Bay-Delta office, noted that the project’s conditions of approval require the applicant to complete a geotechnical study on the condition of the adjacent Sacramento River levee. If that study concludes expensive improvements are needed, the project conditions permit development to go forward anyway if the applicant and county conclude that repairs are economically infeasible. “The way this project is set up is to allow people to move into an area where a levee may not be certified,” Kelly said. “That’s like a screaming red light saying, ‘Hey, pay attention to this.’” The proposed project calls for up to 106 single-family houses, 56 units of cottage/cluster housing, 30 acres of industrial uses and 25 acres of commercial development (see , January 2007). The site is an old sugar beet processing plant that closed in 1993. Developer John Carvalho has already transformed part of the brick complex into winemaking and wine tasting facilities. Proponents said the project would help local agriculture by providing a location for processing, and by offering housing for local workers. They contended that the Delta Protection Act permits certain development within communities that existed prior to the law’s enactment. After Yolo County approved the project last fall, the Natural Resources Defense Council (NRDC) and a group called Concerned Citizens of Clarksburg appealed the decision. They contended the project violates the act and the policies that the commission has adopted to implement the act. Opponents also contended that the project was out of scale in the small farming town of about 400 people, and that placing houses next to ag-industrial operations and 300 feet from vineyards would hinder farming. “This project will forever change the town of Clarksburg,” said Greg Loarie, an attorney with Earthjustice who represented the NRDC. “Dense urban development and farming don’t mix so well.” The project would be the first new housing development within the primary zone since it was designated, and the appeal was only the second — the first of any significance — to reach the commission since its creation in 1993. Although project proponents denied the commission’s decision would set a precedent, other people said differently, and the commission clearly felt the weight of the moment. The law’s author, Johnston, was appointed to the panel only recently, and state Sen. Michael Machado (D-Linden), a nonvoting member of the panel and the author of farm, flood and water legislation, stayed throughout the marathon hearing attended by about 150 people at the Courtland Auditorium. Machado made clear he thought the county had approved the project without considering the broader flood-control context. Current Federal Emergency Management Agency maps show that the site has 500-year flood protection. However, virtually everyone concedes that the earthen levee is inadequate and that an ongoing Army Corps of Engineers remapping effort could place the site into the flood hazard zone lacking even 100-year flood protection. Machado noted that the state Department of Water Resources is conducting its own study that could result in decertification of the levee as a buffer from a 100-year flood, but the state study won’t be complete for four years. “Would the county then be willing to accept liability for any breach?” Machado asked rhetorically. Yolo County Supervisor Helen Thompson, a former Assembly member, contended that the project conditions of approval require “the most aggressive flood protections in the entire Sacramento region.” Those include a 50-foot setback from the toe of the levee, a new geotechnical study, implementation of feasible mitigation measures, and raising living quarters five feet above the existing grade. But project opponents seized on the flooding issue, which remains a hot topic in the region as ongoing evaluations cast doubt on the levee system (see , page 2). “The county has not shown any evidence the area has 100-year flood protection,” argued James Pachl, attorney for Concerned Citizens. The project site is 10 feet above sea level, but 100-year floodwaters would be 25 feet above sea level, he said. But proponents said the project is just what Clarksburg and the area need to keep the local agricultural economy healthy. County Counsel Phil Pogledich, who served as the primary advocate for the project during the hearing, said the site is a closed industrial plant in a community that needs economic development. “The opportunities that this project bring do not expand the urban footprint of Clarksburg,” he said. “It’s an integrated redevelopment project that brings many benefits to the town of Clarksburg.” By clustering housing on a quarter of the site, the project eliminates the need for housing in other rural areas, he added. “It won’t open the door to anything,” Pogledich said of project approval. “We are not setting a precedent for rapid urbanization of the Delta primary zone.” “The old sugar mill site is within the urban limit line of the town of Clarksburg,” added Supervisor Thompson. The project “takes not one inch of agricultural land from the Delta.” Local residents appeared almost evenly divided on the project. Opponents generally endorsed the industrial and commercial portions of the project, but they said the housing was out of place and that it would cause unwanted land use conflicts and traffic. Proponents said the housing is much-needed and that the addition of new children to town could spur re-opening of the recently closed elementary school. “We don’t want to go out on the agricultural land and start creating lots,” said Commission Chairman Mike McGowan, also a Yolo County supervisor who voted for the project at the county level. “The intent is to build more houses on less acreage. … If we’re going to build in Clarksburg or Courtland or Walnut Grove, you want to maximize use of the land.” The housing, which is generally seen as the project’s economic engine, however, caused the majority of commission members to halt. Robert Calone, of the West Delta Reclamation Districts and a charter member of the commission, quoted from commission policies that recommend buffers of 500 to 1,000 feet between agricultural operations and housing. Yet the project’s buffer would be only 300 feet from the first planting to a house — and only about 225 feet of the buffer would be on the project site. In addition, said Commissioner Topper Van Loben Sels, of the North Delta Reclamation Districts, the project would place new residents in close proximity to agricultural processing operations. Although the commission made its intent clear at the January 25 hearing, it is scheduled to vote formally based on written findings later this month. The project will then return to Yolo County. Litigation is very likely. Developer attorney Kristen Castanos and the county had already argued that the commission did not have jurisdiction.

The newly incorporated City of Goleta had the authority to reject a final subdivision map after the Santa Barbara County Board of Supervisors had approved the tentative map for property that was in unincorporated territory at the time, the state Supreme Court has ruled. In a relatively short opinion, the state’s high court found that the Subdivision Map Act supported the city’s decision, and that the developer’s reliance on the county’s map approval did not prohibit the city from exercising its authority. Justice Carol Corrigan wrote the opinion, which was joined by five other justices. Only Justice Joyce Kennard dissented. The case attracted a great deal of attention. The League of California Cities and the Sierra Club were among the organizations filing briefs supporting the city, while the California Association of Realtors, the Pacific Legal Foundation, the Building Industry Association and the state Department of Housing and Community Development were among the developer’s legal supporters. The ruling would appear to address a rare situation. However, the California Association of Local Agency Formation Commissions reports that as many as 23 communities are considering incorporation. In 1999, Oly Chadmar Sandpiper General Partnership submitted an application for a 109-unit condominium project on 14.5 acres in Goleta. At the time, the community a few miles west of Santa Barbara was unincorporated. In October 2001, the Santa Barbara County Planning Commission approved a vesting tentative map for the project. Six days later, Goleta citizens voted for incorporation. Two community groups appealed approval of the Sandpiper project to the Board of Supervisors, which then approved the project on January 15, 2002, even though newly elected Goleta councilmembers had made known their opposition. Goleta legally became a city on February 1, 2002. When Sandpiper came before the City Council a few months later for final map approval — usually a ministerial action based on the developer meeting the conditions of the tentative map — the City Council refused to provide approval. Sandpiper sued, and Santa Barbara County Superior Court Judge J. William McLafferty ruled for the developer. On appeal, the Second District Court of Appeal overruled the lower court and held that Goleta had authority to deny the final map. The state Supreme Court then took the case and a 6-1 majority voted to uphold the appellate court. First off, the court said that the “vesting” nature of Sandpiper’s tentative map was not a factor. At issue was Government Code § 66413.5, a portion of the Subdivision Map Act. This section, approved in 1998, provides that a newly incorporated city must approve a final map when a tentative map has been approved by the county and meets all conditions of the final map. However, the law has an exception for an instance when a tentative map is submitted after the first signature is placed on an incorporation petition. Citing a bill analysis, Justice Corrigan wrote that this exception was intended to prevent a “run on development rights” when incorporation appeared imminent. In this case, Sandpiper submitted its project application after incorporation petitions were first signed. Still, the developer agued that ministerial approval was required because the city, upon incorporation, adopted the county’s ordinances, which compelled ministerial approval. The City argued that the City Council was the final decision-maker for all tentative maps, and that the city was obligated to approve final maps only when the city approved the tentative map. With little analysis, the court sided with the city. “We conclude the city had discretion under § 66413.5 to disapprove the final map because it had not approved the tentative map,” the court ruled. Sandpiper also argued that the city was estopped — or precluded — from rejecting the final map because Sandpiper had invested $90,000 to move the project forward in reliance on the county’s approval of the tentative map. The developer said it was unaware the city opposed the project, and noted that the city excluded the project from a building moratorium. But the court said Sandpiper had not established the elements of estoppel because the developer did not have reason to rely on the city’s support. “City authorities began voicing concerns about the project from virtually the moment of the city’s creation,” Corrigan wrote. “The City Council continued to identify problems with Sandpiper’s plan at its meetings in August through November of 2002. In light of this history, the city’s decision to disapprove the final map should not have come as a surprise to Sandpiper.” In addition, the court noted, the city exempted the project from the moratorium because state law (Government Code § 65858(c)(1)) required the exemption for a multi-family housing project. In a dissenting opinion, Justice Kennard wrote that § 66413.5 was “irrelevant here” because the tentative map fell into the statutory exception. Instead, § 66474.1 should apply, and that section does not give the city discretion to reject the map, she wrote. “When Goleta denied approval of Sandpiper’s final, conforming subdivision map on January 6, 2003, some 11 months after Goleta’s incorporation took effect, it had not enacted subdivision ordinances of its own, as it could have, either to supercede those it took over from the county or to supplement the state law procedural requirements imposed by the map act,” Kennard wrote. The Case: , No. S129125, 06 C.D.O.S. 11729, 2006 DJDAR 16559. Filed December 21, 2006. The Lawyers: For Goleta: Amy Morgan, Burke, Williams & Sorensen, (951) 788-0100. For Oly Chadmar Sandpiper: Patrick Breen, Allen, Matkins, Leck, Gamble & Mallory, (213) 622-5555.

Some of the most intense growth battles of the last 20 years have involved development of classrooms, laboratories, housing and other facilities by the University of California (UC). Local government representatives and residents in Davis, Berkeley, Santa Barbara County and elsewhere have complained that UC shoves development down their throats without considering local impacts or desires. A recent report by the Legislative Analyst’s Office (LAO) suggests that the locals just might be right. The LAO found that UC’s planning process varies greatly from campus to campus, is not accountable to state lawmakers, and is not necessarily based on system-wide estimates for student growth. The report also notes that UC has never reached a “fair share” agreement with a local government for offsetting impacts of UC campus growth in the five years since the UC Board of Regents established a fair-share policy. “ e generally found a lack of accountability, standardization and clarity,” the LAO reported. “This unnecessarily creates tension between the university and local communities regarding how much campuses should grow and the mitigation of the environmental impacts related to that growth.” Although the report centers on UC’s 15 campuses and medical centers, the study could have implications for California State University (CSU) and community college districts. All are exempt from local land use controls, but the study makes clear that none of these institutions grows in a vacuum. Moreover, the report arrives only six months after the state Supreme Court ruled that CSU must mitigate the off-campus impacts of development at CSU Monterey Bay ( , 39 Cal.4th 341), and the Fourth District Court of Appeal rejected a college district’s argument that it lacked authority to fund off-site traffic improvements ( ., (2006) 141 Cal.App.4th 86) (see , September 2006). Assemblyman John Laird (D-Santa Cruz), who requested the LAO study, said the report should provide a step toward a new UC planning process. “The current system is broken. We need to do something better,” Laird said. “I’m just excited that there can now be a civil discussion about this issue based on the facts.” The LAO report specifically addresses long range development plans (LRDPs) prepared by individual campuses. The documents are master growth plans covering 10- to 20-year periods. The Board of Regents adopts the plans, which are prepared by campus administrators. The LAO examined LRDP processes in Davis, Santa Cruz and Riverside, as well as system-wide planning practices. The LAO made six major findings: • There is a lack of state accountability and oversight. • No standardized process for public participation exists. • There has been minimal system-wide coordination in projecting enrollment for recent long-range plans. • Campuses primarily want to expand graduate enrollment. • The California Environmental Quality Act (CEQA) process lacks clarity. • No UC campus has reached a “fair share” agreement. Based on these findings, the LAO recommended greater legislative oversight, a standard approach for soliciting public input, projecting growth on a system-wide basis, more summer classes to better utilize facilities, clarifying the CEQA Guidelines, and a report by UC on ensuring that fair share agreements are reached. “We’re not criticizing any component of an LRDP or the regents for approving it,” said Anthony Simbol, who prepared the LAO report. “But I think the Legislature needs to know what a campus is planning for.” Jennifer Ward, a UC office of the president spokeswoman, questioned the report’s recommendations. She said UC has never been interested in a standardized approach to campus planning. “Berkeley as a community is different from Davis. Merced is different from Los Angeles,” Ward said. “The university has felt from the beginning that the campuses make development decisions on their own rather than based on a standardized approach.” Ward also said that while no fair-share agreement has been reached under a new process, “we have contributed millions of dollars to mitigate any sort of impact we create.” The LAO found that while UC has prepared system-wide enrollment projections through the 2010-11 school year, campuses have adopted LRDPs extending beyond that timeframe, meaning that campuses made their own enrollment estimates. Some of these estimates are based on desires to create new graduate and professional programs such as law schools. Thus, the LRDP is really a policy document, and UC expects the Legislature to fund implementation — even though the Legislature has no say over LRDPs, Simbol noted. “The level of growth — is it necessary? Those are important policy questions. We shouldn’t just assume what the university wants is the right thing to do,” Simbol said. Ward said UC plans for the needs of the state as a whole, and the number of students is only one factor. “I don’t think the Legislature would want to be in the business of real estate and growth. That would require more bureaucracy and hiring expert staff,” Ward said. Laird, however, said UC has provided the impression that campuses must grow to accommodate ever-increasing undergraduate enrollment. “The LAO shows that may not always be the case,” said Laird, who noted the Department of Finance expects undergraduate enrollment to begin declining in 2013 because of demographic trends. Laird said he hopes the report and subsequent actions by UC and the Legislature could lead to approval of fair-share agreements and ease local tensions — although he said it might be too late in his home town of Santa Cruz. The city, the county and UC are in an all-out war over UC Santa Cruz growth, and city voters recently approved two initiatives aimed at cutting off city services for campus expansion (see , December 2006). “There is a train wreck going on in town right now because UC is not addressing these issues,” said Laird, a former Santa Cruz city councilman. “It’s not in anybody’s interest to have initiatives going on the ballot.” Max Neiman, a senior fellow at the Public Policy Institute of California and former UC Riverside associate dean, said there is a natural tension over growth at every UC facility except the new Merced campus. “They are all in some sense constrained by the communities that surround them,” Neiman said. Still, not all university towns are alike. The LAO noted that while Santa Cruz and Davis have resisted UC growth, Riverside has welcomed university expansion. But even in Riverside, Neiman said, low-income residents have expressed concerns about being displaced by UC expansion. Contacts: Anthony Simbol, Legislative Analyst’s Office, (916) 444-4656. Assemblyman John Laird, (916) 319-2027. Max Neiman, Public Policy Institute of California, (415) 291-4441. Legislative Analyst’s Report: www.lao.ca.gov/2007/uc_lrdp/lrdp_011007.htm

A developer is proposing a new town of up to 6,800 housing units and 2.5 million square feet of commercial and industrial space in the northwest corner of San Benito County, just across the boundary of Santa Clara County. DMB Associates, which has developed about 10 master-planned communities in the West, has proposed the El Rancho San Benito project on approximately 11,500 acres just east of Highway 101. The project still faces a very long process: Proponents have yet to file an application with San Benito County, and they will need voters to approve rezoning of what is now farmland, pasture and open space. “We are well into our third year of community outreach,” said Ray Becker, DMB’s project manager. “I expect we will have a land plan, as a result of a series of charettes, by the end of March.” The developer intends to file a specific plan application with the county later this year, he said. The developer has been courting local officials and members of the public through mailings, surveys, public meetings and even field trips to a DMB project west of Phoenix called Verrado. Becker said DMB has tried to learn about local needs, and is drawing up a plan to respond. Traffic is undoubtedly the number one issue. Highways 25 and 152, which carry commuters from Hollister and the Central Valley to Highway 101 and the Silicon Valley, are jammed at commute time, and the two-lane roads are considered exceedingly dangerous. Becker said DMB would address this situation by building a new arterial road through its project from Highway 25 to the 101 freeway. In addition, DMB has acquired a branch rail line running through the new town site from Gilroy to Hollister. “We’re still exploring potential uses of the rail line,” Becker said. San Benito County Supervisor Anthony Botelho said, “We have some very unique transportation needs in the region. The project would need to deal with not only its own impacts, but others.” Gilroy Planning Manger Bill Faus said traffic generated by El Rancho San Benito would be one of his city’s primary concerns with the project. The job market and shopping opportunities all lie north of the new town in Gilroy and beyond, Faus pointed out, but Highway 101 and Gilroy streets are already quite congested. A related concern is air quality, as any large development impacts air quality in the narrow air basin at the south end of the Santa Clara Valley, Faus said. The project’s potential orientation toward Gilroy and the rest of Santa Clara County — rather than toward the San Benito county seat of Hollister — is also a local concern. With its location adjacent to Highway 101, Rancho San Benito might have fewer impacts both positive and negative than if a new town were located elsewhere, Botelho said. “Are those folks going to shop in Hollister? Probably not,” Botelho said of the new town’s potential residents. DMB sees the site’s proximity to Silicon Valley as a definite asset. The location is far closer to the South Bay’s job centers than are new developments in the Central Valley, Becker noted. “It’s in an excellent location,” Becker said. “It is at the tail end of the Silicon Valley. It is a 45-minute commute, traffic permitting, to the heart of Silicon Valley. It’s one of the most beautiful places I’ve ever seen.” But Becker insists that Rancho San Benito would be more than simply a bedroom for Silicon Valley employees. The project is intended to be a fully rounded community, he said. Of the 6,800 housing units, 20% will be affordable, with a “full spectrum of housing types,” Becker promised. Nearly 2 million square feet of industrial development is planned, as is 500,000 square feet of commercial space. Once built out over 10 to 12 years, the new community could provide as many as 9,000 permanent jobs, according to promoters. Rancho San Benito would have a mixed-use downtown district and an extensive park system. The company favors small neighborhoods of roughly 100 units centered around an iconic feature, such as a park or school, Becker said. The company’s policy is for every housing unit to be no more than two blocks from a park. The project would also involve protection of a great deal of open space. DMB currently owns about 4,500 acres and is nearly finished acquiring another 7,000 acres. Of that total 11,500 acres, only about 3,000 acres are pegged for development, according to Becker. In general, the property is not great farmland, and there is not a lot of irrigated agriculture, he added. Of course, new town dreams and schemes are anything but new in California. Many projects never get past the promotional brochure stage, let alone the public approval process. Supervisor Botelho, whose district includes the new town site, said he needs a lot more detail and analysis before he can make a decision. “I’m taking a neutral position until I see the project,” Botelho said. “One of the concerns that everybody has is the scope. A new town is, to us, a big step. It has to be a contributing project that solves problems. It needs to be integrated into our community.” Besides enduring the normal planning and environmental review process, Rancho San Benito cannot go forward unless supervisors amend the county’s growth ordinance, which caps development at 1% annually, or about 60 newly subdivided lots. In addition, the project cannot advance without voters’ consent. This is because the project involves a general plan amendment for more than 100 housing units, which requires an election in San Benito County. Exactly when the project should go to voters has not been determined, said Art Henriques, the county’s planning and building inspection director. The voter initiative that requires the vote appears to call for an election early on, before substantial planning is done. However, the initiative also calls for the Board of Supervisors to refer such proposals to the ballot, which means the proposal would be a “project” under the California Environmental Quality Act. Thus, there would have to be a fairly substantial environmental review before the election, he said. Becker said the growth restrictions are “a fairly understandable result of the growth patterns the county had realized in the ’90s — rapid growth without a whole lot of infrastructure growth.” Becker said that county officials and voters should be willing to relax the growth restrictions once they see how DMB will enhance San Benito County and provide needed infrastructure. Getting infrastructure in place ahead of new houses is essential, he said. Indeed, lack of infrastructure is an issue throughout much of the county. State officials shut down growth in the City of Hollister in 2002 because of wastewater treatment capacity. The county itself has minimal infrastructure, and there are virtually no improvements on the Rancho San Benito site, so DMB would be starting from scratch. This is the not the first try at developing a new town on the property. Ten years ago, the county rejected a proposal for nearly 10,000 housing units. The DMB proposal also follows voter rejection in Hollister last November of a retirement community proposed by Del Webb and Pulte Homes. Their initiative — which would have rezoned 1,300 acres of agricultural land to permit “mixed-use residential” and would have exempted the project from the city’s annual limit on sewer hookups once the moratorium is lifted — received only 43% support. Some people have drawn comparisons between the two projects, saying they both are fairly isolated locations and propose relatively dense housing. DMB did not participate in the Pulte Homes campaign and laid low for a while after the election. Becker, however, said the projects are not alike. Importantly, he said, DMB is going through the normal planning and environmental review process, rather than taking its project directly to voters. In addition, the Pulte Homes project would have been a closed-off retirement community, while DMB proposes building a fully rounded town. Contacts: Ray Becker, DMB Associates, (831) 635-5910. Anthony Botelho, San Benito County supervisor, (831) 636-4000. Art Henriques, San Benito County Planning and Building Inspection Department, (831) 637-5313. Bill Faus, City of Gilroy, (408) 846-0440. El Rancho San Benito website: www.elranchosanbenito.com

When San Diego’s Multiple Species Conservation Plan (MSCP) was adopted a decade ago, then-Interior Secretary Bruce Babbitt declared it “a model to the nation for how to plan for and balance the needs of man and nature.” Ambitious in geographical scale, daunting in jurisdictional complexity, the plan was intended to regulate development across nearly a quarter of the fast-urbanizing county in such a way as to minimize conflict over scores of rare, threatened or endangered species and their habitats. It wasn’t long before environmentalists began finding fault with the plan, arguing that it did more to protect the profits of developers and landowners than the survival of imperiled plants and animals. In 1998, a year after the plan was adopted, a coalition of groups filed suit to block it. Late last year, a federal judge agreed with the critics and forced a halt to many of the projects approved under the plan, ruling that it would “permit monumental destruction” of the species it purported to protect. Environmentalists hailed the court’s decision as a “precedent-setting” rejection of key elements of the plan — and, by extension, hundreds of similar plans that have been or are being negotiated nationwide. For the same reasons, representatives of the building industry expressed alarm. But the October 13 ruling is both more and less than it might seem. The decision by Judge Rudi Brewster of the U.S. Southern District of California Court throws a roadblock in front of only a small percentage of the development plans regulated under the San Diego MSCP. Yet at the same time, the ruling provides a disquieting look inside the Habitat Conservation Plan (HCP) program as implemented by the U.S. Fish and Wildlife Service (USFWS), lending support to critics’ claims that sloppily drafted agreements can expedite rather than curtail habitat-wrecking activities. The San Diego MSCP was one of the first large-scale HCPs negotiated. Although they were first authorized by Congress in 1982, HCPs were used only sparingly until the mid-1990s, when the Department of Interior under President Clinton began encouraging them as a way of blunting enthusiasm for a wholesale rewrite of the Endangered Species Act (ESA) by the new Republican majority in Congress. Before 1994, only 20 had been adopted. In the next two years, USFWS approved 196. (There are now 484 in effect.) HCPs are voluntary agreements negotiated under the ESA between the federal government and private landowners, states or local governments, allowing the “incidental take” of listed species during the course of otherwise lawful activity. An HCP must accompany any application for an incidental take permit, spelling out how the effect of the permitted activity on a protected species will be minimized and mitigated. In theory, an HCP incorporates measures that actually improve a species’ chances for survival — allowing destruction of a small amount of habitat in one place, for example, while requiring preservation of an even greater amount elsewhere — while also enabling farmers to continue farming, loggers to continue logging, and builders to continue building. The San Diego MSCP encompasses 900 square miles in the southwestern part of the county, including the City of San Diego, and was intended to preserve native habitat for many species rather than focusing efforts on one species at a time. The heart of the plan is establishment of a 172,000-acre preserve, referred to as Multi-Habitat Planning Area (MHPA), which is to be assembled from public land, property donated by developers, and real estate purchased by private or public agencies. Inside the MHPA, development is limited to protect 85 plant and animal species. In return, the federal government has authorized local jurisdictions to hand out incidental-take permits to developers and landowners, so long as their projects comply with the plan. The court ruling did not invalidate all such permits. It focused specifically on those related to development of property containing vernal pools — shallow, seasonally flooded ponds and puddles that constitute one of the rarest and most threatened habitat types in California. Those in the San Diego area are home to seven listed species: five plants and two varieties of fairy shrimp. Judge Brewster faulted the USFWS for not evaluating the impact of development on vernal pool species before authorizing incidental-take permits. The agency had deferred such review to the future, deciding that because any project that affected a vernal pool would constitute disturbance of a wetland, specific developments would therefore require Clean Water Act permits from the U.S. Army Corps of Engineers. Potential impacts and suitable mitigation could be determined then, according to the USFWS. But in a 2001 decision ( , 531 U.S. 159), the U.S. Supreme Court ruled that the Corps of Engineers had no authority under the Clean Water Act to regulate disturbance of “isolated wetlands.” Brewster concluded that this ruling requires USFWS to go back and conduct an environmental review of the effect of development on San Diego’s vernal pool species before any permits can be issued. According to the San Diego Planning Department, a handful of projects — construction of a half-mile road, a church and a housing development — will be stalled while their impact is analyzed. The judge didn’t stop with vernal pools. He noted that no secure funding mechanism was identified for acquiring land for the MHPA, meaning the preserve might never be assembled. Of greater significance to HCP negotiators everywhere, he also took issue with the MSCP’s assurance to developers and landowners that USFWS would not require additional land, restrictions, money, conservation measures or mitigation over the 50-year life of the agreement. These “no surprises” guarantees are among the most hotly disputed aspects of the HCP process, with critics arguing that strategies must change over time to reflect new data. Brewster noted that it’s possible to build adaptive management techniques into the HCP process — pointing specifically to one negotiated for the Natomas Basin near Sacramento — but he concluded that the USFWS had dropped the ball in San Diego. The agency did not analyze the effect of development on vernal pools because it expected the Corps of Engineers to do that in the future. Yet the USFWS also signed an agreement promising that no additional future restrictions would be imposed. In essence, the judge concluded, this meant that even if future analysis concluded that development would harm listed species, USFWS could do nothing because it had given away its legal authority to require protection. A hearing on federal officials’ request for clarification of Judge Brewster’s ruling is scheduled for this month. Sources David Hogan, Center for Biological Diversity, (619) 574-6800. Neil Levine, Earthjustice, (303) 623-9466. Betsy Miller, San Diego Planning Department, (619) 533-4543.

Increasingly, Gov. Arnold Schwarzenegger appears to be in the municipal bond business. Last fall, he championed the passage of almost $40 billion in bond measures on the state ballot, mostly for infrastructure. In his State of the State speech, he called for Californians to pass $29 billion in additional bonds over the next three years. And in the budget he proposed during January, he called for spending more than $11 billion of bonds during the next 18 months. But what business is Schwarzenegger really in? There’s a pretty good argument that he is – or should be – in the business of shaping the next generation of California’s growth. As I have said before in this space, California has long since outgrown its “design capacity” of about 20 million people, which was created by the postwar infrastructure investments. The cost of living is high, the population continues to grow, the coastal metro areas have run out of land, and the inland areas are sprawling quickly, often without enough infrastructure to support the sprawl. A new vision is needed, and Schwarzenegger is in an enviable position to provide one. He is the most popular governor since Earl Warren; he has way more money to spend on infrastructure than anybody since Pat Brown. And he likes to think big. Whether all these qualities will translate into a new vision for the future of California remains to be seen. A vision would require a commitment to do some things and not others – most particularly, to concentrate money and infrastructure in some places and not others. Even though he ran as a centrist, Schwarzenegger is a Republican with ties to the building industry and the transportation lobby. And he must deal with labor-oriented legislative leaders. The bonds, of course, can’t be spent all at once, and most of the money will be spent after Schwarzenegger leaves office. Wall Street can absorb only so much in California bonds at any given time, and the state can afford only so much in debt payments. He has already proposed spending $2.8 billion in the current fiscal year – most of it for schools – and almost $9 billion next year, with a significant chunk of that going to transportation. (He proposes a slow start for housing, flood control, and the Proposition 84 land conservation money, which comes from an initiative rather than a measure he brokered with the Legislature.) But if Schwarzenegger wants to be visionary, the most important thing that he could do is create a consistent set of criteria for doling out the money. These criteria don’t necessarily need to embody pure “smart growth” ideas, but they do have to convey a sense of vision and direction. Otherwise, California’s growth for the next 20 years will be just haphazard enough that the state could become less competitive in the future. Environmental groups such as the Sierra Club suggest reviving implementation of AB 857, the 2002 law that requires all state agencies to pursue three smart growth-oriented goals: infill development, compact greenfield development, and protection of agricultural and natural resource land. The bill required the governor to submit an implementation plan to the Legislature – which Gray Davis did in November of 2003, just an hour before he was replaced by Schwarzenegger. That was pretty much the end of AB 857. Strict implementation of AB 857 would meet with strong resistance from the building industry, which would fear a restriction of buildable land in the Central Valley especially, and probably also from the transportation lobby, which would fear a de-emphasis on highway construction. At the same time, Schwarzenegger should have strong motivation to follow an AB 857-type approach in order to pursue his own environmental agenda. Last September, Schwarzenegger signed AB 32, which creates a statewide cap on greenhouse gas emissions in 2012 and ratchets that cap downward significantly by 2020. It is extremely unlikely that California could meet the emissions reduction goals based on technology improvements alone. Some shift toward more efficient land use patterns is probably also required. And this is where a visionary approach from Schwarzenegger could be cutting-edge. Most of the money in the bond package will go to transportation. Proposition 1B set aside $1 billion for improvements to Highway 99 in the Central Valley. Environmentalists fear such earmarks will lead to more sprawl – but highway improvements in some parts of the state (especially the Central Valley and critical connector links in the metropolitan freeway systems) will be necessary no matter how the state grows. Schwarzenegger has a great opportunity because virtually all of the transportation money will be doled out by the California Transportation Commission under criteria yet to be determined. More important is the fact that the transportation bonds have many other pots of money in them that could be subject to criteria linking land use and transportation. For example, 1B also creates a “State-Local Partnership” account and stakes it with $1 billion. The governor could create powerful incentives to shift the state to a less sprawling growth pattern if he paired transportation funds like the State-Local Partnership with land use funds contained in Proposition 1C. The housing bond contains $850 million for infill development and $300 million for transit-oriented development, but so far nobody knows quite what this means. The governor has a great opportunity to define what this means – target locations and projects that will kick-start infill and transit-oriented development in places where the market is not quite ready – and reinforce those developments with compatible transportation projects out of Proposition 1B. Schwarzenegger even has a great opportunity to use Proposition 84 to reinforce this vision. Although Proposition 84 funds are less within the governor’s control because it is a ballot initiative with many earmarks, land conservation funds could be used in coordination with highway funds to alleviate environmentalist fears that roads will lead to sprawl. These funds could be combined with the housing funds to create a comprehensive strategy to target specific nodes for future growth, whether transit-oriented in the coastal metros or auto-oriented in the inland areas. This combination could become even more powerful if the governor leverages all of these pots of money into a decent run at reform of the California Environmental Quality Act. CEQA needs streamlining, especially to promote infill development. But the homebuilders want streamlining for every location, not just infill locations, and environmentalists fear that streamlining means weakening. Judicious use of Proposition 84 funds in rural areas and 1C funds in urban areas might help to clarify where development will and will not occur – thus opening the door for some legislative reform of CEQA. There are also opportunities to help fund and reinforce local planning efforts that adhere to a new vision for California’s growth. These opportunities lie not only in giving planning grants to local governments but in using the state’s leverage. There is considerable money in the higher education bond, for example, to mitigate the impact of campus expansion on surrounding communities. An even bigger step would be to bring the K-12 school construction money into the mix, because this represents the state’s largest construction program. School districts often favor sprawling locations because they are cheaper. However, the school construction program sits completely separate in the state bureaucracy from transportation, housing, and CEQA – and so it would be very difficult to bring within a new vision. Even a popular governor like Schwarzenegger might not want to engage all the interest groups required to take advantage of the opportunity that the bonds create. But if he’s serious about shaping a new vision for California – especially in light of his greenhouse-gas bill – he’s going to have to take on at least some of these interest groups and promote an alternative approach to growth.