The City of Riverside has sued the City of Los Angeles regarding a Port of Los Angeles expansion that Riverside officials say will add to existing inland railroad congestion. The lawsuit contends the Board of Harbor Commissioners did not adequately address or mitigate rail impacts on Riverside that would result from port expansion. Los Angeles officials said the environmental impact report for the China Shipping terminal expansion is legally adequate and they would defend it in court. Frustration with train traffic from ports in Los Angeles and Long Beach has been growing in inland cities for years. Riverside has 26 at-grade railroad crossings, and as many as 128 trains a day roll through town. According to the city's lawsuit, those crossings are tied up by trains for three to six hours per day. The result, according to the city, is air pollution, traffic congestion, dangerous driving conditions and emergency responses that are delayed by three to 21 minutes. Riverside argues that the terminal expansion approved in December 2008 would add at least six trains per day, providing a significant and cumulative impact for which the port offers no mitigation. During the port's consideration of the EIR, Riverside asked for fair-share contributions to grade separation projects. The EIR does not require those contributions. Riverside is currently implementing a $300 million program to provide a series of eight underpasses and overpasses. This is not the first lawsuit over the China Shipping terminal project. In 2001, environmentalists and San Pedro homeowners sued the city for approving the project based on two earlier environmental documents. An appellate court found the city had violated CEQA and halted the project. ( Natural Resources Defense Council v. City of Los Angeles , (2002) 103 Cal.App.4th 268; see CP&DR Legal Digest , December 2002 .) Los Angeles settled that litigation in 2003 when it agreed to spend $60 million on air pollution control and aesthetic improvements. The latest case is City of Riverside v. City of Los Angeles , Los Angeles County Superior Court case No. BS119161. Beaumont is the second city in the San Gorgonio Pass area to lose a California Environmental Quality Act case because of an inadequate water study. Riverside County Superior Court Judge Mac Fisher in late February ruled that the EIR for the 2,868-unit Legacy Highlands project lacks sufficient proof of water availability. Fisher's ruling came in a suit filed by Cherry Valley Acres and Neighbors, and the Cherry Valley Environmental Planning Group, which have continually challenged local growth decisions. The EIR's water analysis was based largely on a promise of water service by the Beaumont Cherry Valley Water District, which relies heavily on imports from the State Water Project. Concerns about water availability and the economic downturn have dramatically slowed housing development in the San Gorgonio Pass area between San Bernardino and Palm Springs (see CP&DR Local Watch , April 2008 ). Last year, a different judge rejected the City of Banning's water analysis for the 1,500-unit Black Bench project. Development of Fanita Ranch in the San Diego suburb of Santee received a minor setback in February, when a San Diego County Superior Court judge gave Santee six months to revise a fire safety plan for the 1,380-home project. However, Judge Linda Quinn did not reject the environmental impact report, as requested by three environmental groups opposed to the development. The site of numerous proposals over the last 30 years, Fanita Ranch remains undeveloped, and environmental groups say it should remain that way because it provides habitat for three rare species (see CP&DR In Brief , February 2008 ; Local Watch , September 1999 ). The project approved by the city in late 2007 calls for houses on half-acre lots, a small commercial center and leaving half the site as open space. Developer Barratt American filed for bankruptcy in 2008, but the Fanita Ranch project was not included in the reorganization. Santa Barbara County supervisors have approved a wind farm on 3,000 acres of agricultural land southwest of Lompoc. Acciona Energy proposes erecting 65 400-foot-tall turbines that will generate more than 1 megawatt of energy apiece. Concerned about noise and aesthetic impacts, neighboring property owners appealed the county Planning Commission's approval of the project. Meanwhile, the California Department of Fish and Game (DFG) appealed because of the turbines' potential to kill birds and bats. But DFG dropped its appeal when Acciona agreed either to provide a 164-acre conservation easement and a $50,000 endowment for management, or to provide $450,000 to the California Wildlife Foundation for bird and bat habitat programs. Supervisors rejected the appeal of the neighbors, who own a 425-acre parcel that would be bordered on three sides by the wind farm. The neighbors, George and Cheryl Bedford, indicated they might sue. The wind farm would be the first of its kind in Santa Barbara County. East Bay Regional Park District and Citizens for East Shore Parks have sued the City of Richmond, a developer and an Indian tribe for allegedly violating a 2006 settlement that allows the Navy to expedite the transfer of land at the former Point Molate Naval Fuel Depot to the city. Richmond, Upstream Investments and the Rumsey Band of Wintun Indians propose a large casino, hotels, entertainment and convention facilities and waterfront housing on 85 acres at the base of the Richmond-San Rafael Bridge (see CP&DR Local Watch , February 2005 ). Harrah's was part of the project but has apparently dropped out. Environmentalists sued over the project, but that suit was settled when the city and other parties agreed to complete an environmental impact report before the city makes any decision to approve the project or hand over the land to Upstream. Although the Navy's land transfer is nearly complete, the EIR has been delayed. Last year, Citizens for East Shore Parks won a trial court ruling against Richmond over its 20-year deal permitting the Scotts Valley Band of Pomo Indians to develop a casino elsewhere in town. That decision is on appeal.

A local government may not use the Homeland Security Act, copyright law or cost concerns to shield its geographic information system (GIS) base map from public disclosure, the Sixth District Court of Appeal has ruled. Although the court ruled squarely for the California First Amendment Coalition in its litigation with Santa Clara County, the court did not decide whether the county could charge extraordinary fees for providing the GIS information. Instead, the appellate panel referred that issue back to Santa Clara County Superior Court. The First Amendment Coalition (CFAC), which filed suit after the county twice denied requests for release of its GIS base map, called the ruling an important precedent. "The Santa Clara decision has potentially far-reaching implications," CFAC Executive Director Peter Scheer wrote. "As governments at all levels increasingly maintain records in digital form, legal issues concerning proprietary rights in, and control over, government databases are front and center in freedom of information disputes. Moreover, the Court of Appeal's reasoning on the county's Homeland Security and copyright claims is not necessarily limited to the Santa Clara County parcel base map. It could also apply to virtually any government-created databases, at the local level and statewide, in California and other states." Deputy County Counsel Robert Nakamae said the county may ask the Sixth District to depublish the decision so that it cannot be cited as precedent. The county may also seek a state Supreme Court review. "The Court of Appeal's decision forces the county to disregard the United States Department of Homeland Security's validation of the base map as ‘protected critical infrastructure information,'" Nakamae said. "The state court decision also creates a gaping loophole in federal laws because anyone can obtain this type of information from the party submitting it to DHS." Sande George, California Chapter American Planning Association executive director, said that the issues raised in the litigation need to be discussed by the organization and public sector planners who respond to public requests for information and maintain GIS databases. At this point, though, CCAPA has no official position, she said. According to the First Amendment Coalition, 37 of California's 58 counties provide GIS base map data to the public for free or for a nominal reproduction cost. Santa Clara County is not one of those 37. Twice in 2006, CFAC submitted a request under the California Public Records Act for the county's GIS base map. Both times, the county denied the request, citing statutory exemptions and copyright protection. The coalition then went to court to compel the county to produce the desired information. Santa Clara County Superior Court Judge James Kleinberg ruled for CFAC, noting that the county had entered into agreements with 18 different entities, including 15 government agencies, to provide the base map. He ruled that there was no exemption for the requested material under the California Public Records Act (CPRA) and ordered the county to provide the information at its direct cost. Judge Kleinberg, however, stayed his ruling to permit the county to appeal. The Sixth District has ordered the stay to remain in place until the lower court resolves the fee question. The county made two arguments for not releasing the requested information: The Critical Infrastructure Information Act, part of the Homeland Security Act of 2002, preempts the state's public records law, and the CPRA's catchall exemption applies to the GIS base map. The county also argued that if neither of those preemptions stands, it could demand end user agreements and payment of more than direct cost of reproduction because the GIS base map is protected by copyright. A unanimous three-judge panel of the Sixth District was unconvinced. On the issue of federal preemption, the court found that the federal law and its accompanying regulations draw a distinction between a state or local government's submission of critical infrastructure information, and protected infrastructure information provided by the federal government to other levels of government. " he federal statute's prohibition of disclosure of protected confidential infrastructure information applies only when it has been ‘provided to a state or local government or government agency,'" Justice Richard McAdams wrote for the court, citing 6 U.S.C. § 133(a)(1)(E)(i). Because in this case the county is a submitter of information, not a recipient, federal preemption of the state public records law does not apply, the court held. In support of using CPRA's catchall exemption, the county argued the public interest in obtaining the GIS base map was "minimal and hypothetical," while the county's purpose for withholding was supported by public finance and security concerns. The First Amendment Coalition disagreed, and so did the court. The public has a legitimate interest in understanding government activities, the court found. And the fact that the public records act request might pose a burden on the county is not a valid reason to block disclosure, the court ruled. On the issue of security, the county argued that terrorists could use the GIS base map to locate the Hetch Hetchy system water pipes, which serve much of the Bay Area. The coalition countered with a GIS expert, Bruce Joffe, a member of the Department of Homeland Security's Geospatial Working Group, who testified that the base map would only identify the Hetch Hetchy right-of-way, which may be identified through other records. Even if right-of-way identification were a concern, the county could remove that information from the base map before providing it to CFAC, Joffe said. The trial court and the Sixth District concluded security must not have been an overriding county concern if the county were willing to sell the base map to 18 purchasers. "In the trial court's view," McAdams wrote, "‘If the security issues were of greater importance, one would think there would be no dissemination of the GIS base map whatsoever.' We see no reasoned basis for overturning that inference." The issues raised regarding copyright and end user restrictions had never before been addressed in a published opinion in California. Essentially, the county argued its GIS base map is protected by copyright and that the county could limit how the base map is used. The coalition argued public records in California are not copyrighted, an argument the court accepted. "The CPRA contains no provisions either for copyrighting the GIS base map or for conditioning its release on an end user or licensing agreement by the requester," McAdams concluded. The only issue the court left unresolved is the amount the county may charge for the GIS base map. County attorney Nakamae maintained the decision regarding a public agency's ability to create copyrighted material is improper. That decision could cost the county its ability to sustain the base map, he said. The Case: County of Santa Clara v. The Superior Court of Santa Clara County , No. H031658, 09 C.D.O.S. 1526, 2009 DJDAR 1802. Filed February 5, 2009. The Lawyers: For the county: Robert Nakamae, county counsel's office, (408) 299-5960. For the California First Amendment Coalition: Rachel Matteo-Boehm, Holme, Roberts & Owen, (415) 268-2000.

The Public Policy Institute of California (PPIC) has released a new report in which it urges less reliance on state general obligation (GO) bonds to fund infrastructure improvements. The report, "Paying For Infrastructure: California's Choices," recommends reducing the voter requirement for local bonds from two-thirds to 55%, more user fees and expanded experimentation with public-private partnerships. The Schwarzenegger administration has estimated the state needs to spend $500 billion over the next 20 years to update and expand transportation systems, schools, water facilities and other public infrastructure. California relies more than most states on local and regional agencies to build and manage infrastructure, according to the PPIC report. However, Proposition 13 requires two-thirds voter approval for passage of local general obligation bonds, and Proposition 218 requires two-thirds voter approval of any "property related" fees and limits those fees to the proportional cost of providing service. State bonds require only majority voter approval, which makes them an appealing alternative, the PPIC report says. Voters have approved $54 billion worth of state bonds in recent years; however, each new bond places a new obligation on state general fund revenues, the PPIC noted. Moreover, agencies might not spend bond funds in the most efficient fashion, the report said. The PPIC pointed to voters' decision in 2000 to reduce the approval threshold for local school bonds from two-thirds to 55%, which has dramatically increased funding for K-12 school construction and community college facilities. " owering the supermajority threshold for all local GO bonds and special taxes would maintain the safeguards of a supermajority vote for new fiscal obligations while improving Californians' ability to fund essential local infrastructure," wrote Ellen Hanak, the report's primary author. The PPIC urged more user fees for things such as transportation infrastructure and water supply, which increasingly are funded with GO bonds even though the projects have specific beneficiaries. PPIC also suggested raising the 18-cent-per-gallon gas tax – a proposal that was part of the recently approved state budget plan until the very last minute. Researchers found California lags other states and countries in the use of public-private partnerships, or P3s. These could include private sector contracts to run public facilities, design-build contracts for project construction and possibly operation, and private equity participation in project financing. "Although P3s are not a panacea, California would benefit from expanding its opportunities with these tools," the report concluded. The report is available on the PPIC website .

The state's system for regulating water quality is failing, according to the Little Hoover Commission. In a recent report, the investigative panel concluded the current system managed by the State Water Resources Control Board and nine Regional Water Quality Control Boards lacks transparency, consistency and accountability, and that the system does not demonstrably improve water quality. Stormwater runoff, a subject that has become particularly controversial during recent years (see CP&DR , April 2008 ), received a great deal of attention. The commission found that the water boards are ill-equipped to deal with the issue, even though more than 30,000 stormwater discharges are subject to permits. "Regional boards issue many of the permits, and boards have differing philosophies and policies toward stormwater regulation in the absence of statewide policies and scientific consensus on causes and solutions. As a result, stormwater discharges are subject to significantly different levels of regulation depending upon the region. The costs of cleaning up stormwater are enormous, fueling the debate about who should pay. The costs of stormwater pollution, however, are far greater, as beach closures impact the state's economy and environmental damage threatens to impair wildlife," the commission reported. Because the state board and regional boards operate mostly autonomously, "there is little focus on clean-water outcomes or accountability," the commission reported. The panel found the boards lack data, scientific research and even an adequate information technology system. Most basin plans, which are supposed to provide the underpinning for all regulatory activity, are decades out of date and not a priority. Regional boards spend most of their time issuing permits, not making broad policy, the commission found. The Little Hoover Commission made four broad recommendations: • Reform the state board and regional boards. Restructure the state board as a full-time, nine-member panel. Five members would be appointed by the governor and confirmed by the Senate. The other four members would be regional board chairs serving staggered two-year terms. Reduce regional boards from nine to seven members, with the chair serving as a full-time employee. Empower executive officers to issue permits to let the boards focus on quasi-legislative matters. • Improve and increase use of data, scientific research and planning. Create an independent Water Data Institute to serve as a state library. Develop report cards for major water bodies much like the group Heal the Bay does for beaches. Update basin plans. • Increase focus on clean-water outcomes and emphasize collaboration, creativity and problem-solving. Work with other government agencies on land uses and air emissions that affect water quality. • Develop a standard cost-benefit analysis to help set priorities. The full report is available on the Little Hoover Commission website: www.lhc.ca.gov .

Faced with rapidly declining revenues and extremely difficult budget choices, local governments are starting to invent their own economic stimulus programs. Cities have begun loaning money to car dealerships, cutting development fees, promoting buy-local programs and undertaking new redevelopment projects, among other things. Although many cities and counties have engaged in economic development activities for a long time, the newest efforts are more creative than ever and are mostly aimed at getting an immediate payback. As consumer spending has dried up and housing values have dropped like an anvil in Lake Tahoe, local governments have seen revenues fall dramatically. The revenue reductions are so severe that cities and counties have started slicing law enforcement, fire protection and other public safety services, which are typically the last areas to be cut. With a state unemployment rate in January of 9.3% – the fourth highest in the country – building activity at its lowest postwar level and an ongoing drought threatening California's gigantic agriculture industry, there is little reason to believe local government revenues will not continue sliding. One bright spot may be the 17-month state budget approved in February. Unlike state budgets passed during previous crises, this spending plan does not shift local revenues to state coffers. That's a tremendous relief, said Megan Taylor, a spokeswoman for the League of California Cities. "The focus at the city level has not been so much on economic stimulus as on dealing with falling revenues. That's the lion starting at cities right now," Taylor said. Because the economy is so uncertain, it is difficult to make economic investment decisions, she added. "Cities are trying to right the ship, but the waters are really troubled." The Obama administration's "American Recovery and Reinvestment Act" should aid at least some local governments. The $800 billion program contains no money for zoos, aquariums, golf courses, swimming pools or casinos, according to a League of California Cities analysis, but it does provide money for myriad other things ranging from affordable housing to transit and highway projects to clean water programs. The League has compiled a guidebook for cities wanting to access the federal monies. Some jurisdictions, however, are not waiting for a federal bailout and have taken immediate steps to help stabilize revenues. At least two cities – Norco and Victorville – have made loans to automobile dealerships, which always rank among the largest sales tax producers. In January, Victorville made a $200,000 line of credit available to Victorville Motors, a 40-year-old, family-owned business that has long been a community booster. The loan carries a 5% interest rate and is due in five years. Meanwhile, Norco has provided $500,000 lines of credit to two car dealerships, Norco Mazda and Frahm Dodge. Frahm has already drawn the full amount, and the Mazda dealership has tapped about $350,000, according to Norco City Manager Jeff Allred. The loans, which are coming from redevelopment funds, carry a 5.15% interest rate and are due in seven years. Norco has two other dealerships, but the city has not had formal talks with them, Allred said. The city offered the loans "to let the dealerships remain in business," Allred explained. "We did a lot of due diligence, and we believed them. They were going to close their doors. They had no capital. They couldn't get new inventory." Norco receives approximately 40% of its sales tax revenue from the car dealerships, which Allred concedes is out-of-balance. But the city needs to preserve what it has, he said, noting the city has already eliminated 24 of 105 positions during the last few years. The fee-supported planning and building departments have shrunk by about two-thirds. The City of Redlands has offered to defer the business license fees for automobile dealerships in town – worth $127,000 this year – but the dealerships have not accepted the offer yet, according to Daniel Hobbs, Redlands redevelopment director. The city has not been willing to make the sort of loans provided by Victorville and Norco, Hobbs said. Instead, the city is placing in utility bills "Buy Redlands" flyers that promote local car-buying by explaining how much the sales tax from a car purchases in city road maintenance, law enforcement and other services. The city is also starting a new program on its cable television channel that will feature local businesses, and the first installment will focus on car dealers, Hobbs said. While the automobile promotions are relatively inexpensive, Redlands is beginning a $3.25 million redevelopment program that will not only help improve the north part of town but provide jobs. The redevelopment agency is offering qualifying households in owner-occupied single-family residences $10,000 grants to repair their properties. The city is starting with a 16-block area and intends to expand the program outward until the agency awards 300 grants, according to Hobbs. "We are going to restrict the list of contractors to Redlands-only contractors, and we are going to require they use Redlands suppliers and subcontractors," said Hobbs, who maintained the city has the authority to impose such restrictions. "This is sort of a mini local stimulus program. It's a way to keep the money in the community." Because of the restrictions, Hobbs said, the $3.25 million investment should have a local economic multiplier of at least 5 and possibly as high as 9. Redlands will also invest redevelopment and Community Development Block Grant funds in neighborhood improvements such as sidewalks and drainage facilities in the targeted neighborhoods, Hobbs said. The City of Beaumont has taken a different approach, but one also focused on construction. In February, the city cut development impact fees by about 30%, or about $5,000 per unit. No one believes that amount is going to turn around the moribund homebuilding industry, admitted Beaumont Economic Development Director David Dillon, but the fee reduction should affect the residual value of raw land and boost builder confidence. "It's a temporary reduction. We'll monitor the situation. We think the market will normalize by about 2012, so we'll ratchet up the fees as needed," said Dillon, who noted housing Beaumont's housing starts dropped from 2,400 units in 2005 to 350 units in 2008. "Beaumont has never relied on impact fees for revenue, per se," Dillon added. Rather, the city has a comprehensive public infrastructure finance program that provides bond revenue for up-front improvements. A community facilities district tax assessment on new homeowners retires the bonds. If the fee reduction applies to 2,000 housing units, the city would see a reduction of $10 million in revenue. "What we're really talking about here is deferring construction of some of the facilities," Dillon said. "We think ultimately it will pay for itself. By increasing jobs and employment and spurring retail sales activity, all of these things will be a positive impact on the city." Beaumont is also expanding a neighborhood improvement program in which the redevelopment agency will cover 80% of the cost of improvements associated with existing uses, such as sidewalks, curb and gutter projects and alleyway upgrades. Previously, the agency paid 50% of costs. The property owner is responsible for the remaining 20% under the expanded program, which covers about 1,700 acres in a redevelopment project area. Beaumont's redevelopment agency also is subsidizing half the cost of building, grading and other permits taken out by property owners anywhere in town, Dillon said. Beaumont is one of dozens of cities and counties that are now allowing builders to defer payment of impact fees until just before project occupancy – a concession sought by the California Building Industry Association to aid builders' cash flow. Local government representatives may also get a say in how the state approaches the federal economic stimulus package. The same day that President Obama signed the recovery and reinvestment act, Assembly Speaker Karen Bass (D-Los Angeles) announced the formation of a "task force to develop a blueprint that identifies a comprehensive approach for spurring the state's economic recovery." Bass said the task force would work with local government, as well as business, labor and community groups, on identifying the best ways to leverage the federal money. The task force has already begun meeting. Contacts: League of California Cities federal economic stimulus analysis . David Dillon, City of Beaumont, (951) 769-8520. Jeff Allred, City of Norco, (951) 270-5617. Daniel Hobbs, Redlands Redevelopment Agency, (909) 335-4755.

A county may not assume that fees paid under a mitigation fee program constitute full environmental mitigation for a project when the program has not undergone California Environmental Quality Act review, the Third District Court of Appeal has ruled. The court determined that El Dorado County should have completed an environmental impact report for a Cameron Park development on the site of eight rare plant species. The county approved the 20-acre development based on a mitigated negative declaration that required the payment of $135,000 in plant species mitigation fees and the preservation of 5.96 acres as habitat for one of the species. The California Native Plant Society, however, presented a fair argument that the development could have a substantial impact, and, therefore, required an EIR, the unanimous three-judge appellate panel ruled. The court made clear that fee-based mitigation programs may provide adequate mitigation under CEQA. However, even though El Dorado County incorporated its ecological preserve fee program in the general plan, which underwent CEQA scrutiny, the program itself was not analyzed under CEQA. Moreover, the general plan EIR states that the program will not mitigate implementation of the general plan, the court noted. And the county never updated the fees after adopting them in 1998, even though the county's own ordinance requires annual updates. "For such a program to satisfy CEQA, it must at some point pass CEQA muster, either at the programmatic level or the individual project level," Justice Fred Morrison wrote for the court. "Further, the county has violated its own ordinance by not conducting annual review of the fee amounts and efficacy of the program, thereby undermining its view that payment of the fee equates to full mitigation." The county adopted the ecological preserve fee program in 1998 to address longstanding concern about development's impact on native plants in the foothills. The program established varying fee levels based on a project's size and location. The county did not conduct environmental review of the program. With the development fees and other funding, the county began acquiring properties in the designated Pine Hill ecological preserve, which covers five separate units of land. In 2001, the county signed a cooperative management agreement for the preserve with the U.S. Fish and Wildlife Service, the Bureau of Land Management, the Bureau of Reclamation, the California Department of Fish and Game, the Department of Forestry and Fire Protection, El Dorado Irrigation District and the American River Conservancy. A BLM employee serves as the preserve manager. In 2004, the county adopted a new general plan, the EIR for which discussed the preserve program. The project in question here involved development of a 140-unit congregate senior care facility, a 35-room Alzheimer's care unit, 64 duplex cottages and an 8,000-square-foot clubhouse. The 20-acre site is located within the Pine Hill preserve. When the project application was submitted in 2006, the site was zoned for 10-acre residential use. Known as Cameron Park Congregate Care, the project has been largely completed by developers Cameron Park Ventures and Pacific Oak Development. Throughout hearings at the county Planning Commission and the Board of Supervisors, representatives of the Fish and Wildlife Service and the Department of Fish and Game questioned the county's mitigation of impacts to rare plants, especially the Pine Hill ceanothus and the Stebbins' morning glory, both of which are listed by the federal government as endangered species. A representative of the local Native Plant Society chapter raised similar questions. But the county insisted that payment of the ecological preserve program fee, designation of the 5.96-acre protected area and mitigation measures mandating the transplanting of individual plant species and cuttings was sufficient. The Board of Supervisors adopted the mitigated negative declaration and approved a general plan amendment, rezoning and the project in October 2006. The Native Plant Society sued, arguing the county had violated CEQA. El Dorado County Superior Court Judge Daniel Proud ruled for the county, largely because project opponents had not attempted to attack the fee program. In overturning Proud, the Third District said the trial court judge framed the question incorrectly by assuming that payment of the fee fully mitigated the project. The Third District said it must view the fee program through the lens of the general plan. The general plan EIR contains a statement of overriding consideration because the fee program does not cumulatively avoid significant environmental impacts to plant species. At the project level, the EIR states that "mitigation shall be defined in the integrated resources management plan." However, no such plan exists, and the applicable general plan policy does not say the fee program will mitigate impacts of discretionary development projects, the court noted. "The study finding that the fee program will not mitigate the impact of adopting the general plan cannot be used to conclude that the same fee will presumptively mitigate the impact of an individual, discretionary project," Morrison wrote. "This fee program has never undergone CEQA review," Morrison continued, "and a public entity cannot simply declare that such and such a fee will ‘fully' mitigate the environmental effects of all future discretionary projects absent some environmental analysis." The court said it was "troubled" by the county's failure to review and update the fee program, even though the ordinance requires – and the general plan EIR emphasized – annual reviews. " t is unknown whether the appropriate amount is being collected from developers," Morrison wrote. The court concluded that substantial evidence supporting a fair argument that the project could result in significant impacts existed. Biologists from state and federal agencies and the plant society all testified that the mandated transplanting and propagating of thousands of ceanothus plants was an unproven technique, and the plant society representative presented evidence that mitigation measures were based on flawed scientific data regarding the plant's lifecycle. The court ordered the county to complete an EIR for the project, noting that even though development has proceeded, "that does not moot the CEQA issues and does not prevent adoption of additional mitigation measures." The Case: California Native Plant Society v. County El Dorado , No. C057083, 2009 C.D.O.S. 1240, 2009 DJDAR 1411. Filed January 29, 2009. The Lawyers: For the plant society: Michael Graf, (510) 525-7222. For the county: Paula Frantz, county counsel's office, (530) 621-5770. For the developers: Andrea Leisy, Remy, Thomas, Moose & Manley, (916) 443-2745.

A lawsuit challenging San Bernardino County's approval of billboards along desert freeways has been reinstated by the Fourth District Court of Appeal. The court ruled the lawsuit, filed by a county resident, need not comply with the speedy filing requirement of a state law pertaining to First Amendment matters. In September 2006, the San Bernardino County Board of Supervisors approved 14 conditional use permits (CUPs) allowing General Outdoor Advertising to erect billboards along Interstates 15 and 40 in the Mojave Desert. Before approving the use permits, however, supervisors amended the county general plan and rezoned the land for highway commercial uses; otherwise, the billboards would not have been allowed. Twenty-nine days later, Frederic Stearn sued the county, arguing it had violated the California Outdoor Advertising Act (Business & Professions Code § 5200 et seq.) and the federal Highway Beautification Act. A resident of Newberry Springs, along I-40 about 20 miles east of Barstow, Stearn argued the county engaged in "phony zoning" because the rezoned land was not near a "business area." The state law defines business area as an area within 1,000 feet of a commercial or industrial building or activity located in an industrial or commercial zone or in an unzoned commercial or industrial area. San Bernardino County Superior Court Judge John Wade dismissed three of the lawsuit's causes of action for traditional mandate because the county's land use decisions were reviewable only by administrative mandate. Wade dismissed the final portion of the suit, seeking an administrative mandate from the court, because Stearn did not file within the 21-day statute of limitations in Code of Civil Procedure § 1094.8. Stearn appealed only the ruling on the statute of limitations, and a unanimous three-judge panel of the Fourth District, Division Two, overturned the lower court. The state Legislature enacted § 1094.8 in response to the Ninth U.S. Circuit Court of Appeals' decision in Baby Tam & Co. v. City of Las Vegas , (1998) 154 F.3d 1097 ( Baby Tam I ). In that case, the Ninth Circuit ruled that when a licensing scheme constitutes a prior restraint on protected speech – in that case, a Las Vegas ordinance regulating adult bookstores – the applicant must be afforded prompt judicial review of the regulating agency's decision. Because California did not provide prompt judicial review, the Legislature passed § 1094.8, which includes the 21-day statute of limitations and a 50-day deadline for judges to render a decision. (The court later modified its requirement for judicial review in the Baby Tam II and Baby Tam III decisions; see CP&DR Legal Digest , June 2001 , March 2000 .) California's statute, however, applies only to aggrieved proponents of protected speech and government agencies, the Fourth District noted. "Here, appellant does not challenge the denial of a license to Outdoor. Neither is appellant involved in any government action imposing a prior restraint on Outdoor's protected expressive activity," Presiding Justice Manuel Ramirez wrote for the court. "He is not a public agency imposing a prior restraint on Outdoor. Rather, appellant seeks to have a court determine whether the county complied with the Act and federal law when it rezoned the areas at issue and then issued the CUPs. " Baby Tam I does not require that actions filed by third parties challenging the issuance or denial of a permit for expressive conduct receive expedited review and decisions. And, because the purpose of § 1094.8 is to fulfill the requirements set forth in Baby Tam I , there is simply no rationale for imposing the 21-day filing requirement on third parties," Ramirez continued. Thus, the court concluded Stearn should not be held to the 21-day statute of limitations and General Outdoor is not entitled to prompt judicial review of the suit. The billboard company also argued that the court should dismiss the suit because it challenged both the county and state permitting processes, even though the company has not received Caltrans approval. But the court ruled that both Caltrans and the county are charged with enforcing the Outdoor Advertising Act, which "explicitly prohibits local agencies from allowing billboards to be placed or maintained if they violate the act." "We are not convinced that any purpose would be served by requiring appellant to wait to raise these issues later in the permitting process," Ramirez wrote. The Case: Stearn v. County of San Bernardino , No. E043334, 09 C.D.O.S. 864, 2009 DJDAR 986. Filed January 5, 2009. Ordered published January 22, 2009. The Lawyers: For Stearn: Randal Morrison, Sabine & Morrison, (619) 234-2864. For General Outdoor Advertising: Gary Mobley, (949) 729-0700.

A lawsuit challenging National City's updated blight findings and extended eminent domain authority for about 700 parcels in a redevelopment project area has been reinstated after a trial court judge threw out the suit on procedural grounds. The Fourth District Court of Appeal ruled that the plaintiffs in the suit should be allowed to correct an error in a published summons. The decision permits the Community Youth Athletic Center and the Institute for Justice to press forward with its reverse validation suit regarding an ordinance amending National City's redevelopment plan. In August 2007, National City adopted an ordinance extending the time period for treating about 700 parcels west of Interstate 805 as blighted and permitting the taking of that property via eminent domain. The Community Youth Athletic Center operates a boxing gym and athletic facility for at-risk youths in the area where the city's redevelopment agency was working on development agreements for a 20-story tower, condominiums and retail space. The center filed a suit contending it was being deprived of its property without due process and that the city was using the eminent domain law for constitutionally illegitimate purposes, such as economic development. After filing the suit, the center sought a court order for service by newspaper publication on the city and "all persons interested in the matter." In a reverse validation suit such as this, the plaintiff is essentially suing � and must notify � "the world." When the trial judge was unavailable, the center got the presiding judge to sign the requested order. However, the center had to get a new order when the newspaper altered its publication schedule. But the October 2007 firestorms in San Diego County closed courthouses for a week, so there was an additional delay. When the summons was finally published, it contained the wrong deadline for filing a response to the reverse validation action. The summons specified a November 16, 2007, deadline, when by law the deadline was actually November 19. Because of this error, the city argued the suit should be dismissed, and San Diego County Superior Court Judge William Cannon granted the city's request. On appeal, the Fourth District determined the defect "cannot be considered to be minor or inconsequential." However, for good cause � the unavailability of the trial judge, the newspaper schedule change, the courthouse closures � the court should have permitted the center to republish the summons, the Fourth District ruled. " laintiff adequately set forth reasons why it inadvertently failed to comply with the statute," the court ruled. "Specifically, plaintiff's attorney was seeking to comply with the applicable notice requirements, and the error in the publication date was directly attributable to the administrative difficulties he encountered in obtaining an appropriate order by publication, to afford such notice." The Case: Community Youth Athletic Center v. City of National City , No. D052584, 09 C.D.O.S. 858. Filed January 22, 2009. The Lawyers: For the center: Richard Segal, Pillsbury, Winthrop, Shaw, Pittman, (619) 234-5000. For National City: Bruce Beach, Best, Best & Krieger, (619) 525-1300.

Urban planners want America to look like Amsterdam, but Americans don't want that lifestyle. So says The New York Times columnist David Brooks. I'm often interested when an expert in another field writes about planning. Because he may not really know what he is writing about, he may bring a useful perspective to the subject. Brooks is an inside-the-Beltway political commentator who appears frequently on television and radio. I think of him as the designated "rational conservative." He usually focuses on national politics and policy, about which he knows a great deal, but he occasionally weighs in on land use issues. In a column last week headlined, "I Dream of Denver," Brooks wrote, "You may not know it to look at them, but urban planners are human and have dreams. One dream many share is that Americans will give up their love affair with suburban sprawl and will rediscover denser, more environmentally friendly, less auto-dependent ways of living. "Those dreams have been aroused over the past few months. The economic crisis has devastated the fast-growing developments on the far suburban fringe. Americans now taste the bitter fruit of their overconsumption. "The time has finally come, some writers are predicting, when Americans will finally repent. They'll move back to the urban core. They will ride more bicycles, have smaller homes and tinier fridges and rediscover the joys of dense community — and maybe even superior beer. "America will, in short, finally begin to look a little more like Amsterdam. "Well, Amsterdam is a wonderful city, but Americans never seem to want to live there. And even now, in this moment of chastening pain, they don't seem to want the Dutch option." Brooks based this conclusion on a new Pew Research Center report , which found that about 70% of suburbanites and rural residents – but only 52% of city dwellers – rate their communities as excellent or very good. Does this poll result truly mean people don't want to live in cities? Or does it suggest that we need better cities? The same poll found that while 56% of city residents would rather live in a suburb, small town or rural area, 46% of suburban residents also would rather live in a different type of community. Brooks makes the point that five of the metropolitan areas in which people say they would most like to live "are neither traditional urban centers nor atomized suburban sprawl." The cities at the top of the list that he mentions are Denver, San Diego, Seattle, Orlando and Tampa. Interestingly, Brooks does not name San Francisco, which tied for fourth with Orlando and Tampa. Perhaps the Bay Area, with its three-way axis of bustling cities, doesn't fit his thesis. Still, I think Brooks makes a valid argument. San Diego offers something for everyone: A resurgent downtown, relatively dense coastal suburbs, more sprawling inland suburbs, small towns in the countryside, numerous ethnic enclaves, freeways and transit, public beaches and desert parks. That's the real takeaway from the Pew survey: One size does not fit all. You would never know this from most of our planning during the last 60 years. For the most part, what we have planned for – and what we have gotten – is suburbia. Low- to median-density single-family houses, segregated uses, few alternatives to the automobile. Yet the Pew poll found that barely more than half of suburban residents would choose a suburban environment, and not even one in five of residents of other areas would pick suburbia. It makes me wonder if we have built enough suburbia to last us for another a generation or two. Maybe, just maybe, we in California should be focused on making cities – whether they be like San Jose or Anaheim – better places to live. Maybe we should make our small towns – whether it's Chowchilla or Ukiah – complete places to live, learn, work and recreate. And maybe we should pause before we convert our rural places – whether it's the Salinas Valley or the Sierra foothills – into suburbs. Most planners are not advocating for an American Amsterdam, and neither am I. I'm only pointing out that not everyone – nowhere near a majority, according to Pew – wants to live in Roseville. – Paul Shigley

A San Diego County water district should have completed an environmental study before approving an agreement to provide recycled water to operators of a proposed landfill, the Fourth District Court of Appeal has ruled. Even though Olivenhain Municipal Water District was not the "lead agency" for review of the landfill itself, the district was a "responsible agency" with obligations under the California Environmental Quality Act. The district did not fulfill those obligations with a contract that placed CEQA compliance in the hands of the landfill operator, the court ruled. The ruling is the first published opinion to cite extensively the state Supreme Court's most recent CEQA ruling, Save Tara v. City of West Hollywood , (2008) 45 Cal.4th 116. In Save Tara , the state high court ruled West Hollywood should have completed an environmental impact report before signing a conditional agreement with the developer of an affordable housing project (see CP&DR Legal Digest , December 2008 ). Like the city in Save Tara , the water district here committed itself to the project "‘so as to effectively preclude any alternatives or mitigation measures that CEQA would otherwise require to be considered, including the alternative of not going forward with the project,'" Justice Alex McDonald wrote, citing Save Tara . San Diego County voters in 1994 approved a ballot measure providing for development and operation of a 1,700-acre landfill and recycling collection center at Gregory Canyon in the north part of the county. The Pala Band of Mission Indians – which has a reservation and casino near the landfill site – and some environmentalists have been fighting the project ever since. In 1998, the Fourth District ruled that San Diego County did not have to complete an environmental impact report on a solid waste management plan that identified Gregory Canyon as a potential landfill site ( Pala Band of Mission Indians v. County of San Diego , 68 Cal.App.4th 556; see CP&DR Legal Digest , January 1999 ). In 2004, the Pala Band sponsored an initiative to overturn the 1994 ballot measure, but voters maintained support for the landfill. The tribe had more success challenging the EIR for the landfill itself. San Diego County certified a final EIR for the landfill in 2003 and approved the project in 2004. The Pala Band, the City of Oceanside and the group Riverwatch sued over the EIR and won when a trial court judge found the EIR defective because it failed to identify the source of water necessary for constructing and operating the landfill, and did not analyze the impacts of obtaining that water. The landfill proponent, Gregory Canyon Ltd. (GCL), responded by signing an agreement in early 2006 with Olivenhain Municipal Water District (OMWD). The district agreed to provide up to 244,000 gallons of recycled water per day for 60 years. Gregory Canyon would truck the water from a reservoir to the landfill site. During the meeting at which the district board approved the agreement, a statement from a Gregory Canyon attorney that the trucks would not have significant impact on traffic provided the only discussion of potential environmental impacts. In July 2006, the county's Department of Environmental Health issued a revised partial draft EIR that addressed the impacts of Gregory Canyon's arrangement with OMWD. Shortly thereafter, the Pala Band and Riverwatch sued the water district for failing to comply with CEQA. A San Diego County Superior Court judge determined the district's approval of the agreement did not constitute approval of a project for CEQA purposes. On appeal of Riverwatch and the Pala Band, a unanimous three-judge panel of the Fourth District, Division One, overturned that ruling. " he activity of trucking recycled water from OMWD to the landfill site is part of the whole action or operations of the landfill project for purposes of CEQA," Justice McDonald wrote. The activity would include building 1,000 lineal feet of roadway, constructing a concrete pad and six-inch meter, and up to 89 water-hauling truck trips per day, he noted. Although the county was the "lead agency" under CEQA for the landfill project, the water district was "a ‘responsible agency,' under CEQA because it proposes to carry out and/or approved part of the landfill project," McDonald wrote. After deciding the contemplated activity qualified for CEQA review, the court turned to the question of whether contract approval amounted to project approval. The district and Gregory Canyon argued that because the agreement contained conditions and placed on the landfill developer the responsibility for CEQA compliance, approval of the agreement did not trigger CEQA. They cited the landmark case Stand Tall on Principles v. Shasta Union High Sch. Dist. , (1991) 235 Cal.App.3d 772, and the more recent Concerned McCloud Citizens v. McCloud Community Services Dist. , (2007) 147 Cal.App.4th 181 (see CP&DR Legal Digest , March 2007 ). In Stand Tall , the court upheld a school district's conditional purchase of a potential high school site without environmental review. In McCloud , the court upheld a special district's approval of an agreement with Nestlé to purchase and bottle water from the district's sources without environmental review. The Fourth District said those cases did not apply here. Stand Tall was based on a specific exception in CEQA Guidelines for land acquisitions conditioned on future CEQA compliance, and McCloud was based on the agreement's lack of specificity, or definiteness, regarding the potential water bottling project. The Fourth District instead relied on Save Tara to determine OMWD's contract approval equaled project approval. "Because the agreement set forth the specific details regarding OMWD's 60-year obligation to deliver recycled water to GCL, and the construction required to allow that delivery, OMWD's approval and signing of the agreement satisfied the definiteness requirement," McDonald wrote. "Furthermore, when on February 17, 2006, OMWD's board approved the agreement and OMWD's execution of the agreement, OMWD clearly committed itself to the course of action set forth in the agreement, which is a discretionary contract." Thus, the court concluded, the district had to comply with CEQA before approving the agreement. The court rejected the argument from the water district and Gregory Canyon that the lawsuit was flawed because it did not also name the county Department of Environmental Health – the lead agency – as a respondent. That agency certified a revised final EIR in May 2007 and filed an addendum in July 2008. Late last year, a trial court judge in that litigation accepted the documents and ruled the county had met its CEQA obligations. That decision is now on appeal in Riverwatch v. County of San Diego Department of Environmental Health , No. D054471. The Case: Riverwatch v. Olivenhain Municipal Water District , No. D052237, 09 C.D.O.S. 1355, 2009 DJDAR 1570. Filed January 9, 2009. Modified and ordered published January 30, 2009. The Lawyers: For Riverwatch: Everett DeLano, (760) 931-1512. For the Pala Band of Mission Indians: Walter Rusinek, Procopio, Cory, Hargreaves & Savitch, (619) 515-3812. For the district: Wesley Peltzer, (760) 744-7125. For Gregory Canyon Ltd.: Patrick Breen, Allen Matkins, Leck, Gamble, Mallory & Natsis, (213) 622-5555.

Twice in the last month, I have used rail transit to get to a big-deal event that would have been a huge hassle to get to any other way. And that experience has reminded me of one of the most often-overlooked advantages of a public transit system: It helps move people to and from special events better than any other method of transportation. The first event was the inauguration of President Obama last month. Crowded though it was on the Washington Metro system � I boarded the Red Line 5 1/2 hours before the event began and I felt like I was in Tokyo � it's impossible to imagine moving millions of people in and out of the Washington Mall area by car or bus. The second was a lot more prosaic from the standpoint of world history, but maybe even a better example of the everyday value of a transit system in smoothing out access to a special event: The "Prologue" of the Tour of California bicycle race in Sacramento on Sunday. Bad weather dampened the size of the crowd, but the presence of Lance Armstrong and the strongest cycling field in American history still drew something like 75,000 people to downtown Sacramento. Staying with a friend who lives walking distance from the 39th Street RT station in East Sacramento, which exists largely to serve the nearby UC Davis Medical Center, I made it in and out of downtown with ease. (I wish I could say as much for our state legislators, who were literally confined to the building all day because the race route went around the Capitol � and yet they still couldn't pass a budget!) My memories of using transit for special events go back more than 30 years, to when my brother lived at the north end of the Broad Street line in Philadelphia. Thanks to "Flyers Specials" and "Phillies Specials" (technically known as the Broad Street Sports Express Service )�there was no need to drive to the stadiums, which, after all, were located at the south end of Broad Street. This is why I am so disheartened whenever I read about a new sports stadium being built in the suburbs, or a new rail transit system being constructed without a stop at a major sports or entertainment venue. What kind of sense does it make to build an NFL stadium � or, as our Morris Newman calls it, a "football island" � near the 57 and 60 Freeways outside Los Angeles, when all it will produce is a gigantic traffic jam whenever there is an event? In case no one has noticed, there's a pretty good stadium in Anaheim where no professional football has been played in 15 years, even though there's a train station in the parking lot that accommodates about 40 Amtrak and Metrolink trains a day. It's no coincidence that the two big-city downtowns we at CP&DR decided were the best in California � San Diego and San Francisco � have great ballparks downtown right near transit stops. Similarly, I could never figure out why the Los Angeles Metropolitan Transportation Authority didn't put a Red Line stop at the Hollywood Bowl. Parking is a nightmare, and the line goes right underneath the venue. There's a stop at Hollywood and Highland , where the Kodak Theater is located, but that's more than a half-mile away.�There's also no�portal straight into University CityWalk either, meaning that tourists and residents can conveniently take a tram down the hill at Universal to the Red Line, get to Hollywood in about 90 seconds, and then walk for 15 minutes to get to the Hollywood Bowl. With portals in the right place, that whole trip could take about 4 minutes.� So here's my idea for "there oughta be a law:" No big new sports stadiums or entertainment venues should be located anywhere except at rail transit stops. And, by the way, no rail transit systems should go anywhere near, over, or underneath a big sports or entertainment venue without having a stop. At least if the stadium or venue has a public subsidy. At least until there's a budget. When we'll all get back on the RT and let the Legislature out of the building. � Bill Fulton

Stockton is the most miserable city in the United States, and Modesto is fifth in misery. So says Forbes magazine in one of its typically provocative lists. The Forbes rankings are actually based on metropolitan statistical areas, so all of San Joaquin County and Stanislaus County may wallow in the misery. But it's the two county seats that get the attention in Forbes and in the national media. I have written about the cities from time to time in both CP&DR and Planning magazine. I don't consider either Stockton or Modesto to be the most miserable city in even California, let alone the United States. Neither are Stockton and Modesto paradise, and knee-jerk rejections of the Forbes ranking miss the point. Most of the San Joaquin Valley – which stretches 250 miles from the Bay Delta to the base of the Tehachapi Mountains – can be pretty miserable. The Great Valley Center – probably the biggest cheerleader the region has ever had – has repeatedly pointed out that poverty is more prevalent in the valley than in Appalachia. People seeking high-paying jobs rise at 3 a.m. to commute from Stockton, Modesto and Los Banos to the Bay Area, or from Bakersfield to L.A. From about Fresno south, the valley chokes on air pollution that is worse only in the smoggiest parts of the L.A. basin. And now that the housing bubble has burst, prices have plunged by one-third to one-half all over the valley; 10% of the houses in some jurisdictions have been foreclosed. Apparently, a 3/2 on a cul-de-sac in a valley housing tract isn't really worth $400,000. I tend to rate places based on qualitative factors. How does a place feel? Does it have vitality? What sort of cultural opportunities are there? How easy is it to get around with or without a car? Are the public gathering spaces clean, safe and well-attended? Is it a place where you want to spend time, or do you simply take care of business and leave promptly? With few exceptions, the newer parts of Stockton and Modesto are faceless suburbia. Huge housing tracts, power centers and commercial strips behind parking lots, one- and two-story concrete-tilt-up business parks – all of it dominated by automobiles. You could be in the San Joaquin Valley, Colorado Springs or the Dallas-Fort Worth Metroplex. But both Stockton and Modesto have sizable historic cores with local flavor. Downtown Stockton has a waterfront with a hockey arena and minor league ballpark, as well as public spaces that many cities would envy. Downtown Modesto is hopping with nightlife, especially on warm evenings. The downtowns are works in progress that still need a lot of private investment to capitalize upon the millions spent by public agencies. Still, the sky is the limit in both cities. Potential for greatness does not change the present-day numbers, though. Stockton and Modesto have high unemployment, high crime, low educational achievement and dire foreclosure rates. And for about three months every year, the tule fog is thick enough to depress an Ecstasy addict. The locals appear nonplussed by the Forbes list. The Stockton Record 's official editorial stance? Yes, it's bad here, but at least we don't have to shovel snow. The Modesto Bee says who cares about Forbes , we have a great water supply. Indeed, the famous arch located at the entrance to downtown Modesto has long proclaimed, "Water Wealth Contentment Health." You can't miss the arch. It's right next to the Taco Bell drive-through.   – Paul Shigley