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.

The Federal Energy Regulatory Commission does not have to consider impacts of previously licensed Butte County dams on threatened Chinook salmon, the Ninth U.S. Circuit Court of Appeals has ruled. The court rejected the argument that Pacific Gas & Electric (PG&E) Company’s ongoing operation of the DeSabla-Centerville hydroelectric project under a license granted by the federal agency in 1980 constituted “agency action” that would trigger review of the project’s impact on the protected fish. The DeSabla-Centerville project consists of a system of dams, reservoirs, canals and powerhouses on Butte Creek. The Federal Energy Regulatory Commission (FERC) issued a 30-year license for PG&E to operate the project in 1980. Operation of the system affects the flow of the creek, which provides spawning grounds for Chinook salmon. In 1999, federal authorities listed Chinook salmon in the Sacramento River basin as “threatened” under the Endangered Species Act. After many fish died in Butte Creek during 2002 and 2003, the National Marine Fisheries Service (NMFS) asked FERC to initiate a “formal consultation” regarding the hydroelectric project’s impact on the protected fish. Under Section 7 of the Endangered Species Act, formal consultation amounts to a review of a project’s impact on a protected species and its habitat, and may lead to project modifications. After FERC rejected NMFS’s request, the California Sportfishing Protection Alliance in April 2004 petitioned FERC to commence a formal consultation. Again, FERC refused to budge. So the Alliance and the Pacific Coast Federation of Fishermen’s Associations sued FERC. Because the litigation involves a FERC order, it bypassed the District Court and went straight to the Ninth Circuit, which upheld FERC’s position. The fishing groups argued that ongoing operation of the hydroelectric project under a federal license amounted to an “action” under the Endangered Species Act. If so, the action would trigger the formal consultation requirement. The groups cited the famous snail darter case, , 437 U.S. 153 (1978), in which the Supreme Court blocked operation of a new dam because of its potential impact on an endangered species of snail darter. But the Ninth Circuit read the snail darter case differently. “In , the Supreme Court looked to the action about to be taken by the agency to operate the dam,” Chief Judge Mary Schroeder wrote for the three-judge Ninth Circuit panel. “The court held that because such action would jeopardize the habitat of the endangered snail darter, the agency could not begin operating the dam. The court thus focused on the potential effect of the government’s contemplated action.” Schroeder also cited the Ninth Circuit’s decision last year in , 456 F.3d 922. In that case, Schroeder wrote, “the plaintiffs challenged the agency’s failure to consult on whether the agency should regulate certain rights-of-way used by private parties to divert water. In rejecting the plaintiff’s challenge we explained that ‘Ninth Circuit cases have emphasized that § 7(a)(2) consultation stems only from “affirmative actions”’ of an agency. We held that because private parties, and not the government, were diverting the water, there was no agency action triggering a duty to consult. “This case is materially the same,” Schroeder continued. “PG&E, a private party, operates the hydroelectric project challenged in this case. FERC, the agency, has proposed no affirmative act that would trigger the consultation requirement for current operations.” The fishing groups pointed to provisions in the 30-year license that permit FERC to reopen the license. They argued that the reopener provisions created discretionary federal control, which amounts to an action. But the Ninth Circuit dismissed the reopener provisions, ruling they “are not sufficient to constitute any discretionary agency ‘involvement or control’ that might mandate consultation by FERC.” The court noted that the existing hydroelectric project license will expire in 2009, and that the relicensing process — including consultation with NMFS — has already commenced. The Case: , No. 05-73064, 06 C.D.O.S. 11324, 2006 DJDAR 16109. Filed December 12, 2006. The Lawyers: For the Sportfishing Protection Alliance: Trent Orr, (415) 665-2185. For FERC: Carol Banta, (202) 502-6433. For PG&E: William Madden Jr., Winston & Strawn, (202) 282-5000.

An appellate court has overturned an award of $33,000 to an irrigation district for the preparation of the administrative record in a California Environmental Quality Act (CEQA) case. The court found that the district’s request for more than $8 per page for preparing the record was out of line with other CEQA cases, that the record included documents prepared after the administrative process concluded, and that the district did not justify the expense. The underlying lawsuit was filed by farmers in Stanislaus County against Modesto Irrigation District (MID), which, in addition to water, provides electricity in four counties. During late 2004, MID certified an environmental impact report and approved construction of new high-voltage transmission lines from a switching station near Westley to a substation near Modesto. The transmission line corridor traverses an orchard owned by Wagner Farms, which sued over the project’s environmental review. Wagner Farms lost its CEQA suit in Stanislaus County Superior Court, and the Fifth District Court of Appeal upheld the decision in an unpublished opinion ( , No. F049311). After the Fifth District issued its decision, MID submitted a request to the Superior Court for $33,422 for preparing the administrative record of proceedings (ROP). (It is common for the public agency being sued in a CEQA case to compile the record, as Wagner Farms requested here.) Wagner Farms opposed the requested amount, arguing that the cost was exorbitant and not supported by MID. Superior Court Judge William Mayhew awarded MID the whole amount. The case then returned to the Fifth District only on the issue of costs, and the unanimous three-judge appellate panel overturned Judge Mayhew. The district apparently based the $33,422 figure on time spent by its staff and by the EIR consultant (Electrical Consultants, Inc., of Billings, Montana), as well as actual copying costs. The Fifth District, however, noted that the price for the 4,107-page record averaged $8.14 per page. In three other published cases, the amount awarded for preparing the record ranged from about 73 cents per page in , (2004) 123 Cal.App.4th 1, to $2.61 per page in , (2005) 128 Cal.App.4th 176. Initially, the court also cited three unpublished cases where costs of between 47 cents and $2 per page were awarded; however, the court later deleted the portion of the opinion concerning unpublished cases. The costs submitted by MID appear “disproportionately high when compared to the costs awarded” in other cases, the court ruled. The court then noted that the last two pages of the administrative record contained maps drawn in March 2005. This was, according to the court, “ the board of directors and MID approved the proposed project and the final EIR in November 2004 — in fact, they were created after plaintiffs filed their petition for writ of mandate on December 22, 2004. The documents, thus, are not a reflection of the agency as they actually happened. As documents created after the proceedings were over, they cannot be considered a proper part of the ‘record of proceedings.’ “Because the documents were not a part of the actual proceedings that led to the approval of the project and therefore are not properly part of the ROP, it necessarily follows that MID’s claim for costs in preparing the ROP was excessive,” Justice Betty Dawson wrote for the court. “Furthermore, given the scant amount of evidence regarding how time claimed by MID was spent, there is no basis in the record for separating the time necessary for preparation of the ROP and the time claimed by MID that went beyond that merely related to preparing the ROP.” The Fifth District returned the case to the Superior Court, and said the lower court may — or may not — permit MID to attempt to justify its claimed expense. Attorney Michael Zischke, who was not involved in the litigation, said the court’s ruling regarding the proportionality of costs — based on a per-page amount — is important for CEQA practitioners to understand. At the same time, the court ruled that it was appropriate for a district consultant to help prepare the record, and that the consultant’s cost could be considered, said Zischke, of Cox, Castle & Nicholson. The Case: , No. F049966, 06 C.D.O.S. 11227, 2006 DJDAR 15978. Filed December 6, 2006. Modified January 5, 2007 at 2007 DJDAR 244. The Lawyers: For Wagner Farms: David M. Gilmore, Gilmore, Wood, Vinnard & Magness, (559) 448-9800. For MID: Joel S. Moskowitz, (310) 373-9790.

A controversial desert redevelopment project in California City has been invalidated by the Fifth District Court of Appeal, which rejected the eastern Kern County city’s determination that the vacant land qualified as blighted because of its parcelization and lack of road access. A few years ago, California City amended its redevelopment plan to take in an additional 15,500 acres to accommodate development of a Hyundai test track and development facility on 4,340 acres. The attorney general’s office characterized the project as a “poster child” for redevelopment abuse, and the project was commonly cited during state Capitol hearings on redevelopment reform. The Fifth District decided the case on narrow grounds, but the ruling does suggest that the skeptics were correct. “The court threw this out because they saw what was going on,” said Donald Johnson, an attorney for California City property owners fighting the project. “This is another in a long line of cases in which courts have warned about vacant land redevelopment projects.” California City determined that the area qualified as blighted under the antiquated subdivision provisions in state redevelopment law. Under those provisions, the existence of subdivided lots of “irregular form and shape, and inadequate size for proper usefulness and development that are in multiple ownership” qualified an area as blighted and urbanized. However, partly because of California City’s interpretation of the law, lawmakers last year amended the statute. Now, the existence of such parcels can be one factor in determining blight, but not the sole factor. “The repeal of the subdivision element focuses the state on urban areas, rather than on this undeveloped desert land,” said Daniel Siegel, a deputy attorney general who argued against the California City project and testified at the Legislature last year. “It was such an extreme example.” In 2002 and 2003, the 200-square-mile desert city (the third largest in the state) annexed about 29 square miles on its southern end, while detaching a similar amount of territory on the north side. The city expanded its redevelopment project area by about 24 square miles, including some of the newly annexed territory. The city also approved development of the Hyundai facility, for which the redevelopment agency assembled about 200 parcels covering 1,000 acres and agreed to split tax increment 50-50 with the Korean company over 10 years (see , May 2004). However, about 15 property owners refused to sell, so the redevelopment agency commenced eminent domain proceedings to acquire their land. In late 2002, one property owner, acting without an attorney, filed a reverse validation action challenging the city’s first redevelopment plan amendment. Eventually, lawyers got involved, a second lawsuit was filed over the second redevelopment plan amendment and the suits were consolidated. In an unpublished 2004 opinion, the Fifth District ruled that the landowner who started things had standing to pursue his challenges in court. The case then returned to Kern County Superior Court, where Judge John I. Kelly ruled for California City. On appeal, the landowners argued that the city’s redevelopment project violated numerous state laws. But the Fifth District ruled only on one issue — whether the city correctly interpreted the law’s antiquated subdivision provisions. The city had found that 80% of the land in the expanded project area consisted of lots that were of irregular form and shape and of inadequate size for proper usefulness. The lots were not particularly small, ranging from 2.5 acres to 480 acres apiece. However, they were created without provisions for roads, so many lots lacked access. The city argued that this lack of access made the lots of “irregular form and shape” and of inadequate size under Health and Safety Code § 33031 (a)(4), a section of the community redevelopment law. The court did not accept this line of reasoning. “Because a lot’s configuration or spatial contour is not altered when access to the lot is obtained, we conclude that access is not a characteristic that determines whether a lot’s form and shape is regular or irregular,” Justice Betty Dawson wrote for the court. “In other words, the might be deemed irregular under applicable standards of law if it does not have physical and legal access to a right-of-way, but that irregularity does not affect the lot’s .” Dawson continued, “ interpretation of the ‘inadequate size’ requirement so that it is satisfied by the same factor (lack of access) as that used to satisfy the ‘irregular form and shape’ requirement further illustrates that access is not a characteristic that defines the regularity of the form and shape of a lot. In other words, if one accepts the interpretation that physical and legal access to a right-of-way determine the adequacy of a lot’s size, then access is not a matter of form and shape.” The court briefly noted some of the other issues raised, including whether the record supports the finding that the area was causing a “serious physical and economic burden on the community” and whether the redevelopment plan was economically feasible. The court did not decide those issues, though. “The court,” said Deputy Attorney General Siegel, “did what was prudent. They addressed the narrowest basis of the dispute and made a decision on that basis.” Attorney June Ailin, of Aleshire & Wynder, who argued the case for property owners, said she was disappointed the justices decided the case “on such narrow grounds. They may have felt because the statute has been changed, they didn’t want to spend a lot of time on it,” she said. Because of the court’s narrow decision, and because the law on which California City relied was amended last year by SB 1206 and AB 782 (see , October 2006), the ruling may not have major implications for redevelopment in general. Still, the decision is one in a string of cases where courts have shown little patience with cities that bend redevelopment law to their liking. What will happen next in California City is unclear, as owners of five parcels have held onto their property, according to Ailin. City representatives have not been commenting publicly. A Hyundai spokesman told the that the test facility would remain in place. However, the court’s invalidation of the redevelopment plan means California City lost authority to acquire property for the test facility via eminent domain, landowner attorney Johnson noted. “The test track is built on land that Hyundai does not own and the agency cannot acquire,” said Johnson, who expects the Superior Court to dismiss pending eminent domain cases. A footnote in the Fifth District decision says, “Hyundai chose to build the facility knowing that the judgment in the consolidated cases was not final. Generally, when a party to litigation decides to proceed with a project before the judgment in that litigation is final, that party has assumed the risk of reversal.” The Case: , No. F049143, 2007 DJDAR 375. Filed January 9, 2007. The Lawyers: For Nielson: Donald P. Johnson, Kane, Ballmer & Berkman, (213) 617-0480. For California City: R. Bruce Tepper, (310) 551-6590.

The Navy is poised to relinquish about 5,200 acres within the Concord city limits. The prospect of so much land becoming available in an area where real estate is at a premium excites city officials, developers, environmentalists and city residents, all of whom have at least slightly different visions for the property. Currently, however, everyone’s vision is clouded by a controversial proposal from the Navy to transfer the territory to Shaw Environmental & Infrastructure, Inc., a Virginia-based military contractor. In exchange for the acreage, Shaw would provide the Navy with an as-yet unspecified amount of “engineering, design, procurement and construction of mission facilities, housing and infrastructure both nationally and internationally,” according to Shaw’s proposal. The Navy has never attempted such a transfer of an old base but told the City of Concord in November that a transfer is under consideration. The news infuriated city officials, who contend that a transfer at this time would skew the planning process. Congress put the “inland” 5,200 acres of the Concord Naval Weapons Station on the base closure list in 2005. (A discontiguous 7,000 waterfront acres several miles north is not slated for closure.) City officials did not expect to get the keys to the inland property: That style of base reuse has faded. These days, the military often auctions at least some of its surplus land to the highest bidder, as it did with former Marine Corps bases in Irvine and Tustin. But the auctions have been conducted after local jurisdictions completed their planning process for the old bases. Thus, buyers have a pretty good idea of what they’ll be allowed to develop and what will be required of them. Handing the base to Shaw now would create a “developer-driven process,” said Jim Forsberg, director of planning, economic development and housing for Concord. “It gives the developer a lot more sway,” he asserted. Shaw has declined to comment publicly about its proposal. The Navy was scheduled to decide how to proceed in December but pushed its deadline back to January 20, although further delays are possible. “Right now, we’re still consulting with Concord on it,” said Jill Votaw, a spokeswoman for the Base Realignment and Closure (BRAC) program management office in San Diego. Legal authority for the proposed exchange is new with the latest round of BRAC and has been used only by the Army for some small assets. “This is an unsolicited proposal from Shaw. We’re really in uncharted waters here,” Votaw said. “We might go back to Shaw and say thank you, but no thank you.” Concord is pressing hard for the Navy to do just that. “We view the exchange authority as another potential tool to be evaluated as part of the overall disposition plan for implementation after the reuse plan has been adopted, not a convenient loophole allowing the Navy to bypass the BRAC process entirely,” Mayor Susan Bonilla wrote to Wayne Arny, principal deputy assistant secretary of the Navy. “By attempting to circumvent a community-driven planning process in favor of a developer-driven process, the Navy would reduce chances for community acceptance of any resulting development proposal and commensurately increase the risk of legal challenges and ballot initiatives.” Navy officials protest that the early exchange would not necessarily harm the reuse process. “This proposal does not change the city’s roles and responsibilities to plan, zone and entitle property,” John Hill, the Navy’s base closure manager for the Concord site, told the . The city may have political momentum on its side. Sens. Dianne Feinstein and Barbara Boxer, and Reps. Ellen Tauscher (D-Alamo) and George Miller (D-Martinez) signed a letter to Arny asking that he “not select disposition methods until the reuse plan is complete.” Notably, Miller is a key ally of incoming House Speaker Nancy Pelosi. While the Navy is deciding what to do, the city is proceeding as if the military will surplus the land under the normal BRAC process. The declaration of surplus would trigger a prescriptive reuse process that includes preparation of a reuse plan, an evaluation of the site for homeless services, and environmental reviews, said Michael Wright, the city’s project manager. The city has hired a consulting team headed by Arup, and a 21-member citizens advisory commission began meeting in December. “We’re starting off into our planning process as if the Navy is going to eventually get around to surplussing the land,” Wright said. This actually will be the city’s second attempt at planning the site, which comprises about one-quarter of the 31-square-mile city. “We were the only city in the country asking the military to close a base,” Forsberg recalled. “It was 5,000 acres just sitting there. It’s been de facto closed for years.” The city saw development of the property as a way to meet regional housing mandates and entice economic development, which the city leaders consider essential because the city gets only 8% of the property tax. When the city updated its general plan a few years ago, the city designated half of the area for 13,000 housing units and 15,000 jobs, while setting aside the other half for parks and open space. “Nobody paid any attention to it because nobody believed the base would close,” Forsberg said. The City Council endorsed the plan, but when the base appeared on the closure list in 2005, “everybody freaked,” Forsberg said. The City Council yanked the base out of the general plan update in May 2006. The city at that point started a new planning process focused solely on the base. The initial result was an ill-defined vision for a “world class” plan that is economically sustainable, has a balance of uses, and maintains the community’s quality of life. In other words, the hard decisions about reuse are a ways off. Environmentalists have talked of devoting most of the base to open space, parks and wildlife habitat, while developers in a region of $600,000 houses have other ideas. City officials make clear they want to generate new tax revenue. Opening up the base to development presents Concord with a new planning opportunity, Forsberg said. The 102-year-old city of 125,000 people has not had large development sites for many years, he explained. An available 5,000 acres on the edge of town would make Concord more like a peripheral suburb. “It looks like greenfields, and it looks like brownfields. It gives us a much broader canvas on which to paint,” he said. Contacts: Michael Wright, City of Concord base reuse project manager, (925) 671-3019. Jim Forsberg, Concord Department of Planning, Economic Development and Housing, (925) 671-3383. Base Realignment and Closure program administrative office, (619) 532-0900.

Yuba County should not have permitted a sand and gravel company to expand its mine without conducting a public hearing, the Third District Court of Appeal has ruled. Yuba County had determined that Western Aggregates has a vested right to mine 3,400 acres along the Yuba River. But the county made the determination without any notification of adjacent landowners or the public, violating the Surface Mining and Reclamation Act (SMARA), the unanimous three-judge appellate panel ruled. The court said the mining company must either get a use permit from the county, or have its vested rights determined by the State Mining and Geology Board — either of which requires a public hearing. Western Aggregates operates a sand, gravel and rock mine in the Yuba Goldfields, a 10,000-acre area east of Marysville that contains perhaps the largest deposit of aggregate in the West. In an earlier lawsuit, a Superior Court ruled that Western lacked authorization under SMARA to mine the goldfields. So the county about seven years ago invited all mine operators to apply for a vested rights determination. Under SMARA, miners need not get a surfacing mining permit if they can prove that they had vested rights to conduct surfacing mining prior to SMARA’s effective date of January 1, 1976, and if there are no substantial changes in the mining operation. SMARA’s other basic requirements for a reclamation plan and financial assurance to implement that plan still apply. In May 2000, the county’s community development director found that Western had vested rights to mine aggregate on 3,400 acres in the goldfields. Western currently operates on about 1,200 acres. Neighboring landowner William Calvert and a group called Yuba Goldfields Access Coalition — which won a different lawsuit against Western over river access via a public road that Western had blocked — sued the county. The mine opponents alleged the county committed a variety of legal and procedural violations. They also argued that the county violated due process requirements of notice and hearing. Sacramento County Superior Court Judge Raymond Cadei ruled for the county on every issue except the due process claim. Although Cadei vacated the county’s vested rights determination, he stopped short of ordering a hearing. Instead, he only directed the county, if it conducted a new vested rights proceeding, to provide reasonable notice and to give the public the opportunity to be heard. The opponents and Western appealed the portions of the decision they lost. The Third District upheld the lower court’s determination regarding SMARA violations, but made clear that either the county or the state board — the choice is Western’s — must conduct a “public adjudicatory hearing.” Western argued that the determination of vested rights is a ministerial process. But, as the court explained, such a determination can be complicated. Vested rights of a surface mine fall under the “diminishing asset” doctrine, which requires that part of the same area was being mined when the law became effective, and that the area into which the owner desires to move was clearly intended to be mined when the law became effective. These are complex factual issues, the court said. “SMARA’s policy is to assure that adverse environmental effects are prevented or minimized; that mined lands are reclaimed to a usable condition; that the production and conservation of minerals are encouraged while giving consideration to recreational, ecological and aesthetic values; and that residual hazards to the public health and safety are eliminated,” Justice Rodney Davis wrote for the unanimous three-judge panel. “A public adjudicatory hearing that examines all the evidence regarding a claim of vested rights to surface mine in the diminishing asset context will promote these goals much more than will a mining owner’s one-sided presentation that takes place behind an agency’s closed doors. … A vested rights determination functions in the SMARA scheme as does a surface mining permit — it sets the tone for all that follows.” “Calvert and other property owners adjacent to Western’s vested rights-claimed mining operation are entitled to reasonable notice and an opportunity to be heard in an evidentiary public adjudicatory hearing before that vested rights claim is determined,” the court ruled. Recognizing the precedent-setting implications of its decision, the court made clear its decision “applies only to an entity claiming a vested right under SMARA to conduct a surface mining operation that is subject to the diminishing asset doctrine.” The court also said its decision is not retroactive and should apply only to cases “in which no final judgment of appeal has yet been rendered.” Western has indicated it may ask the state Supreme Court to accept the case. Barring a state high court reversal, Western’s most likely course of action would be to ask the state board to make a vested rights determination. Applying for a permit from the county would require environmental review, opening a number of sensitive subjects, including the mine’s impact on protected species of fish. The Case: , No. C047857, 06 C.D.O.S. 11174, 2006 DJDAR 15903. Filed December 6, 2006. The Lawyers: For Calvert: Theodore Franklin, Weinberg, Roger & Rosenfeld, (510) 337-1001. For Western Aggregates: Kerry Shapiro, Jeffer, Mangels, Butler & Marmaro, (415) 398-8080. For the State Mining and Geology Board: Russell Hildreth, attorney general’s office, (916) 327-7853.

A Regional Water Quality Control Board permit that mandates how Los Angeles County and 84 cities in the county manage stormwater discharges is not subject to the California Environmental Quality Act, an appellate court has ruled. The Second District Court of Appeal originally ruled that the Los Angeles Regional Water Quality Control Board had to conduct a “limited” CEQA review of the stormwater permit. But the board asked the court to reconsider, and the court changed its ruling — an extremely rare occurrence. The permit in question was issued in 2001 and has since been superceded by a new permit. However, the ruling makes clear that the regional board need not conduct CEQA review of the permit, which is more stringent than the 2001 version. The court’s ruling is important to planners because the permit has implications for planning and development activities. The permit requires the cities and county to update their general plans to include “considerations and policies” regarding management of stormwater quality and quantity. The cities and county are also required to consider stormwater quality impacts as part of CEQA reviews, and to implement programs to control runoff from construction sites and new developments. The latter requirement has resulted in new development standards for projects larger than 5 acres. Many cities and counties have battled the regional board over runoff issues since the board began cracking down on urban runoff, which is the largest source of water pollution in the state. The local governments contend the regional board’s mandates — contained in a watershed management plan for the Los Angeles Basin and the stormwater permit — would cost tens of billions of dollars to implement, making them prohibitively expensive for local governments. Courts, however, have consistently ruled for the Los Angeles board and, in similar controversies, for other regional boards and the State Water Resources Control Board (see , April 2006). The permit at issue in the litigation at hand is known as the Los Angeles County MS4 permit, or formally “Municipal Storm Water and Urban Runoff within the County of Los Angeles, and the Incorporated Cities Therein, except the City of Long Beach.” The regional board issued the five-year permit in December 2001. The National Pollutant Discharge Elimination System, a part of the Clean Water Act, provides the legal background for such permits. A coalition of 32 cities and the county sued, challenging the permit on many grounds. Los Angeles County Superior Court Judge Victoria Chaney ruled entirely for the regional board. With its amended decision, the Second District, Division Five, upheld the lower court. The Second District dealt with many of the substantive challenges in an unpublished portion of its opinion. In the published part of the ruling, the court rejected the local governments’ argument that the regional board could not issue the permit because it lacks statewide jurisdiction, and that the state board had to be part of the litigation. The court then considered the argument that because the permit implicates land use, housing, conservation and open space planning, the permit violated the separation of powers doctrine. Only cities and counties have the authority to decide on such matters, the argument went. The court approached the situation differently. “Regional boards are explicitly granted the authority to issue orders for purposes of enforcing the federal Clean Water Act,” Presiding Justice Paul Turner wrote for the court. “Federal law requires that permits include controls to reduce pollutant discharge in areas of new development and significant redevelopment — the very area where regional board review occurs. So long as the regional board’s decisions carry out federal and state water quality mandates resulting from express legislative action as the challenged orders in this case in fact do, no separation of powers issue is present.” As for CEQA, the court originally cited , (2006) 135 Cal.App4th 1392, for the proposition that limited environmental review of the permit was necessary because carrying out the permit requires significant construction and urban planning. But after granting the regional board’s request for a rehearing, the court decided that was different from this case because “the decision does not involve the issuance of a National Pollution Discharge Elimination System permit. Rather, it involves the development of a basin plan.” Under CEQA, the resources secretary has the authority to require limited environmental review of some regulatory programs, according to the court. But the secretary has never imposed the environmental review requirement on the NPDES permit system, the court ruled. The Case: , No. B184034, 2006 DJDAR 13567. Filed October 6, 2006. Modified November 6, 2006 at 2006 DJDAR 14670. The Lawyers: For the county: Howard Gest, Burhenn & Gest, (213) 688-7715. For some cities: Richard Montevideo, Rutan & Tucker (714) 641-5100. For the Regional Water Quality Control Board and state board: Richard Magasin, attorney general’s office, (213) 897-2604.

A state appellate court has reinstated a lawsuit over a proposed Wal-Mart supercenter in the City of Lodi. A trial court judge had thrown out the suit because the group Citizens for Open Government did not appeal the Lodi Planning Commission’s project approval to the City Council. Instead, Citizens for Open Government participated in an appeal filed by a different group. The trial court ruled that Citizens had not exhausted its administrative remedies, a requirement for getting into court. But the Third District Court of Appeal said the Lodi City Council’s appeal hearing amounted to an independent consideration of the proposed development, so all Citizens had to do was participate in that process. The group that filed the appeal, Lodi First, has already won a Superior Court ruling in a separate lawsuit over the city’s environmental impact report for the Wal-Mart project. The Third District’s decision means the Citizens lawsuit challenging different aspects of the EIR may go forward. The proposal for a new Wal-Mart in Lodi has been controversial since 2002, when Browman Development Company filed an application for a 340,000-square-foot shopping center to be anchored by a 230,000-square-foot supercenter on 36 acres at Kettleman Lane and Lower Sacramento Road. Opponents qualified an initiative that would have banned stores larger than 125,000 square feet, but, with the Browman application pending, voters rejected the initiative in November 2004. The following month, the Planning Commission certified an environmental impact report for the project and approved a use permit and tentative parcel map. Lodi First appealed to the City Council, which also approved the EIR, use permit and map. Lodi First and Citizens for Open Government then filed separate lawsuits. San Joaquin County Superior Court Judge Elizabeth Humphreys dismissed the Citizens action, ruling that the group had failed to exhaust administrative remedies. On appeal, the Third District first considered the city’s argument that the Superior Court ruling for Lodi First had made the Citizens lawsuit moot because the court had already set aside the project approvals. The Third District ruled that the lawsuits are different. The trial court in the Lodi First suit ruled that only the issues of potential urban decay and energy impacts needed further study. The Citizens lawsuit concerns mitigation for the loss of prime farmland, economic impacts and compliance with land use plans, the Third District noted. The Third District then considered Humphrey’s ruling. The appellate panel said that under Public Resources Code § 21177 (a section of the California Environmental Quality Act), “issues raised before a court must first have been raised during the administrative process, although not necessarily by the person who subsequently seeks judicial review.” The city argued that the group had to file its own appeal with the City Council under Municipal Code § 17.72.110. However, the court determined that the city ordinance “does not require an appeal to be filed by ‘each’ and ‘every’ person claiming to be directly and adversely affected in order for such person to appear before the City Council.” In reality, an appeal under § 17.72.110 transfers the final decision-making authority from the Planning Commission to the City Council, the court held. And, indeed, the City Council did not merely affirm the Planning Commission’s decision. The council adopted its own resolutions to certify the EIR and to approve the permit and map, the court pointed out. “City Code § 17.72.110, like the corresponding CEQA provisions, used the method of an ‘appeal’ to bring a use permit application from the Planning Commission to the City Council for its independent consideration as the final decision-maker,” Justice Tani Cantil-Sakauye wrote for the court. “At such a hearing, a person’s participation and objection regarding the city’s approval of a use permit satisfied the exhaustion of administrative remedies requirement, assuming the issues subsequently sought to be litigated were sufficiently raised before the City Council.” There was no dispute that representatives of Citizens for Open Government objected to the environmental review at every public hearing. The court distinguished its decision from that in r, (2000) 81 Cal.App.4th 577. In that case, the court ruled that opponents of a proposed lodge had not exhausted administrative remedies because, although their lawsuit addressed environmental review, the appeal of the county Planning Commission decision to the Board of Supervisors concerned only parking requirements (see t, July 2000). In addition, the local ordinances are different. The Case: , No. C051419, 06. C.D.O.S. 10420, 2006 DJDAR 14885. Filed October 11, 2006. Ordered published November 9, 2006. The Lawyers; For Citizens: Donald Mooney, (530) 758-2377. For the city: Jonathan Hobbs, Kronick, Moskovitz, Tiedemann & Girard, (916) 321-4500. For Browman Development: James Moose, Remy, Thomas, Moose & Manley, (916) 443-2745.

San Bernardino County is using redevelopment tools to help a rural community devastated by the Southern California firestorms of 2003 rebuild. The effort is one of the first times a California redevelopment agency has formed a project area specifically to aid recovery from a natural disaster. The October 2003 Old Fire essentially wiped out the community of Cedar Glen, just north of Highway 18 at the east end of Lake Arrowhead. Although the fire spared a small commercial area and some homes, the blaze consumed 336 houses and cabins, and left behind a slide-prone landscape. The redevelopment project’s priorities are to overhaul the water system, upgrade roads and help people rebuild in a more fire-safe manner, explained Kathy Thomas, San Bernardino County’s redevelopment director. Overall, the firestorms of 2003 charred approximately 750,000 acres in six Southern California counties. The fires killed 24 people and destroyed 3,600 homes in total. They were followed less than two months later by deadly mudslides in San Bernardino County. Few places were hit harder than Cedar Glen, a former weekend getaway that had evolved into a rural residential community. Because much of the area is covered with “tent lots” of 2,500 square feet, houses sat very close together amid the forest, which helped to spread the fire. In addition, nearly all roads are narrow, winding and unpaved, and the privately owned water company was unable to deliver adequate flow to firefighters. The county Board of Supervisors approved the 837-acre redevelopment project area in November 2004. Approval was controversial in part because the father of Supervisor Dennis Hansberger, who represents Cedar Glen, owns a number of parcels within the project area. Hansberger did not vote on project formation, but he has since participated in redevelopment decisions and has been the project’s champion on the board. Hansberger contends he has no conflict of interest, and county attorneys agree. Residents expressed frustration with redevelopment for a while, saying the county was moving too slowly and making too many unilateral decisions. But a personnel change that resulted in Thomas’s hiring appears to have improved communications, and on-the-ground improvements are starting to become visible. “We had a real rough start with the Cedar Glen redevelopment project,” said David Stuart, executive director of Rebuilding Mountain Hearts and Lives, a nonprofit organization formed after the fire. Contentious issues remain, but the situation is more positive now, he said. “Everything that I’ve seen out there has been for the good of the people,” Stuart said. In late 2005, the Board of Supervisors approved a $10 million loan from the general fund to the Cedar Glen redevelopment project. Between that loan, federal funds and revenues from the resale of land that the redevelopment agency has acquired through tax sales, the project will have about $17 million available, Thomas said. There are no plans to issue tax increment bonds. Of the county’s $10 million loan, $1.2 million is going for three housing programs that provide loans or grants to people who are rebuilding or making existing structures more fire-safe. Another $500,000 was designated for land acquisition, $450,000 for road and water design, and $250,000 for business assistance. Thomas estimated that the water system and roads need at least $8 million to $10 million in upgrades. The privately owned Lake Arrowhead Water Company, which serves about half of the project area, was antiquated, and the redevelopment agency is in the midst of purchasing the company out of bankruptcy. The water system will become a county special district. “There are massive, massive improvements needed,” Thomas said. The same could be said of the road system. Back in 2003, firefighters avoided some areas because the roads were not wide enough for two vehicles and lacked turnaround points. The redevelopment agency has acquired more than 100 tax-defaulted parcels, and some of those will be used to widen roads, and create turnouts and turnarounds. The county also intends to improve road drainage. Major construction on the water system and roads is scheduled to commence in the spring. Stuart said the road work is essential because some insurance companies will not provide insurance until there is a paved loop providing two routes in and out of the residential cluster. The redevelopment agency has also begun work on a lot-merger program. Although the county has eased building standards and is willing to grandfather in homeowners who are rebuilding, officials want new homes to have more defensible space around them. The area’s multitude of 2,500-square-foot lots won’t do, so the county is encouraging landowners to acquire adjacent lots and merge them. “Many of the long-time residents thought it was a good idea,” Thomas said. “The real difficulty here is, how do you help those who are landlocked or who don’t have the finances to buy the lot next to them?” Many tax-defaulted properties will become available in May, Thomas said, and the county is considering ways to give neighboring property owners first shot at acquisition. The county also is considering waiving lot merger fees if people combine only a few lots. Stuart urged the county to waive those fees, which, he said, only make rebuilding that much more difficult. Because Cedar Glen is a disaster recovery project area, the county has only 10 years to incur debt, 10 years to conduct activity, and 30 years to pay off debt, Thomas said. Those timelines are significantly compressed from typical redevelopment deadlines. Only about 35 houses have been rebuilt, and approximately 25 more have been permitted. That seems slow to Cedar Glen residents, but it is faster than the redevelopment agency anticipated. Thomas said total tax increment revenue is estimated to be $18 million to $29 million, depending on the rate of rebuilding. Bayview Hunters Point Plan Challenged Opponents of San Francisco’s 1,300-acre redevelopment project in Bayview Hunters Point have a filed a lawsuit in hopes of forcing a referendum vote on the project. The city approved the redevelopment project in May 2006 primarily to boost affordable housing opportunities (see , September 2006). Opponents filed enough signed petitions to force the project onto the ballot, but City Attorney Dennis Herrera blocked the referendum. He said that petitions were invalid because they contained only the ordinance approved by the Board of Supervisors, not the entire redevelopment plan. Redevelopment opponents, who contend the project does not reflect local desires and will increase gentrification, filed a lawsuit in mid-December seeking to force the referendum onto the ballot and to halt the city from implementing the plan until there is an election.