During the next 12 months, the Orange County Transportation Authority (OCTA) plans to build a an additional westbound lane on the 91 Freeway for a few miles just west of Riverside County. Such minor highway work might seem unremarkable — except for the fact that the agency spent $207 million simply for the right to pursue the project. In January, OCTA took possession of a 10-mile-long toll road in the median of the publicly owned 91 Freeway. The public purchase of the private toll road marked another chapter in California's decades-long struggle to provide highways for its growing population and the even faster growing number of cars and trucks. More directly, the OCTA's buyout of California Private Transportation Company means that transportation planners can get serious about improving circulation between Inland Empire homes and job sites in coastal cities. They are talking about more lanes on the 91 and improving some major highway junctions. And planners are talking about a new route between the counties — a conversation that Orange County has only recently been willing to join. "We're really trying to foster a cooperative atmosphere. We want to make things better," said Ellen Burton, section manager in OCTA's strategic planning division. "I've been here a long time, and if feels like a log jam has been removed." State legislation approved in 1989 authorized the constriction of four private tollways. The 91 Express Lanes, which opened in December 1995, was the only one of the private roads that has actually been built. About the same time that the toll road opened, Southern California began shaking off an extended economic slump. The number of jobs in Orange County and in the industrial cities of southwestern Los Angeles County exploded. And many of the people who filled those jobs purchased homes 40 miles or more inland in western Riverside and San Bernardino counties. By the late 1990s, the 91 Freeway — the only freeway directly linking the Inland Empire with Orange County — had become one of the region's most congested. However, the agreement that allowed the California Private Transportation Company to build the toll lanes included a "non-compete" clause that essentially gave the private company veto power over projects that would ease 91 Freeway congestion until 2030. Riverside County officials in particular chafed at the non-compete clause because the restriction extended for eight miles along the 91 corridor into Riverside County, even though the toll lanes ended at the county line. Making the situation even more tense was the stance of some Orange County officials, who said the problem was Riverside County's. When Riverside County attempted to get Orange County cooperation with Riverside County's integrated land use and transportation plan, for example, Orange County showed little official interest. Orange County appears to have come around for a variety of political and economic reasons. A redrawn assembly district now extends along the 91 Freeway to include chunks of both counties, whereas the district formerly did not contain any portion of Riverside County. Orange County business leaders have also made it known that they rely on workers from Riverside County. Although Riverside County is seeing significant job growth, by 2010 Riverside County will still be housing-rich/jobs-poor, and Orange County will have more jobs than local residents can fill, according to a study commissioned by OCTA and Riverside County. "Neither county can realistically meet its own local employment needs without facilitating the movement of workers between both sub-regions," said the study by Economics & Politics Inc., and Alfred Gobar Associates. During 2001, the OCTA began moving toward a purchase of the 91 Express Lanes. In September 2002, Gov. Davis signed AB1010 (Correa), which authorized OCTA's purchase of the toll lanes. The OCTA board gave final approval for the $207 million deal in November, and OCTA took possession on January 3. Although now under public ownership, the 91 Express Lanes remain a toll road. The agency likely will continue to collect tolls at least until the purchase cost is recouped, OCTA spokesman Ted Nguyen said. With the non-compete clause gone, the OCTA has several two projects it intends to pursue immediately, said OCTA's Burton. First up will be an $8 million additional westbound lane from Riverside County to Coal Canyon Road. The new lane is scheduled to open by January 2004. The next project will be the addition of a lane in each direction between Highway 71 in Riverside County and Highway 241, a public toll road in eastern Orange County. That project will cost about $46 million, although the design in not final, Burton said. "Our job right now is to get these projects prepared for funding," said Burton, who acknowledged that the state budget mess could delay construction. With voter approval in November for extension of a half-cent sales tax for transportation, the Riverside County Transportation Commission (RCTC) will have the money to extend the additional lanes to Interstate 15 in Corona. Improvements to the 91 Freeway's interchanges with the 71 and I-15 are also planned, RCTC spokesman John Standiford said. The agency should have enough money by 2009, but it might issue bonds to speed construction, he said. Future Orange County projects include adding capacity to the 91 Freeway between Highway 241 and Highway 55 in Orange. And the biggest project of all will likely come as a result of a proposed "regionally significant transportation investment study." That two-county study is supposed to identify new ways to link the counties. One alternative is constructing a new freeway either through or in a tunnel under the Cleveland National Forest. The OCTA is developing a scope of work and doing technical background study for the big study, which will take 18 to 24 months to complete, beginning later this year, Burton said. Some of the new cooperation can be seen in creation of a new advisory committee to oversee operation of the 91 Express Lanes. The OCTA and the RCTC will each have five committee representatives; Caltrans will have two appointees and the San Bernardino Association of Governments will have one representative. The first meeting is scheduled for this month. The staffs of the OCTA and RCTC are communicating more than ever before, RCTC's Standiford said. Representatives of the two agencies and Caltrans met in January and decided they would collectively decide which projects could provide the most congestion relief, Caltrans spokeswoman Pam Gorniak said. Contacts: Ellen Burton, OCTA, (714) 560-5923. John Standiford, RCTC, (909) 787-7141. OCTA website: www.octa.net

A voter-approved height limitation initiative does not apply to redeveloped land that was part of a military base, the Fourth District Court of Appeal has ruled. The base reuse authority — the City of San Diego in this case — can apply only those portions of local zoning regulations that are consistent with the federally approved base reuse plan, the court ruled. The approved reuse plan for surplus land at a naval training center in San Diego allowed for structures up to 100 feet tall. Proposition D from 1972 capped development in coastal areas outside of downtown at 30 feet. So the city, acting as the base reuse authority, properly rejected application of Proposition D to the surplus base land, the court held. The city's planning for reuse of the 429-acre site began in 1993 with creation of a 26-member committee. In 1997, the Department of Housing and Urban Development (HUD) approved a draft plan. In October 1998, the city adopted the final reuse plan and certified a joint environmental impact statement and environmental impact report. The plan called for single-family residences up to 36 feet tall, and a hotel of up to 100 feet in height. In March 1999, the Defense Department issued a record of decision approving the reuse plan. The city amended its zoning ordinances, then submitted the reuse plan to the Coastal Commission as an amendment to the city's local coastal plan (LCP). The Coastal Commission conditioned its approval on height limits of 36 feet in residential areas and 45 feet in the office and research zone, with the exception of one 58-foot-tall structure. The city adopted the proposed modifications and the Coastal Commission certified the LCP amendment in September 2001. The following month, a group called Save Our NTC sued, arguing that the base reuse plan violated Proposition D. San Diego County Superior Court Judge E. Mac Amos Jr. ruled for the city. A unanimous three-judge panel of the Fourth District, Division One, upheld the decision. No one contended that Proposition D applied to the military base when the federal government owned it. The issue was whether Proposition D became applicable to the surplus base property when the federal government transferred the land to the city. Save Our NTC contended the wording and intent of Proposition D indicated the initiative should apply. But the court ruled that under the Federal Base Closure Act and the state Government Code, Proposition D cannot apply. The federal law requires the designated redevelopment authority to prepare a reuse plan subject to approval by HUD and the Defense Department. Once the plan is approved, local plans and zoning must be updated to reflect the redevelopment plan. " he determination of the appropriate use for base property is made pursuant to federal criteria and is not necessarily limited by existing local zoning ordinances," Justice James McIntyre wrote for the court. The state law, meanwhile, "requires the local base reuse authority to ‘fully honor all conditions, requirements and understandings with the federal government with respect to the use and disposal of that property,'" McIntyre wrote, citing Government Code § 67842, subd. (c). " he federal government's transfer of the surplus NTC property to the city did not trigger the application of all existing zoning ordinances to the property, but instead only those that were consistent with the Reuse Plan approved by the Defense Department and HUD," McIntyre concluded. The court also rejected the argument that the failure to apply Proposition D to the site was an illegal repeal of a voter initiative. Proposition D did not apply to the property when passed by voters and did not become applicable upon transfer of the property, so no part of the initiative was overturned, the court ruled. The Case: , No. D039615, 03 C.D.O.S. 465, 2003 DJDAR 553. Filed January 14, 2003. The Lawyers: For Save Our NTC: Steven Haskins, Haskins & Associates, (619) 479-4351. For the city: John P. Mullen, deputy city attorney, (619) 533-5800.

The history of public housing suggests that utopia is not merely a naïve idea, but may be a dangerous one. In her recent book , UCLA professor Dana Cuff has argued that some of the worst housing projects in Los Angeles were the result of well-intentioned and civic-minded people, who, during the first half of the 20th century, were trying to rid the city of neighborhoods they considered slums. "It should not be assumed that some profit-grubbing developers were responsible for the most egregious civic works; the state and the Progressives were leagues ahead when it came to disrupting communities," she writes. Cuff quotes an Illinois woman trying to protect her neighborhood against the expansion plans of a local university: "They can really destroy you, the nice people." The new Aliso Village is a neighborhood of 470 dwelling units built on the site of the most notorious housing projects in East Los Angeles. The question is: Can good design, even the most enlightened by current standards, bring civility to a low-income, historically crime-ridden neighborhood? And if we have learned that utopian, do-gooder housing projects can fail, are we not inviting a similar failure by replacing the 1940s version of the good life with our own ideal? One thing we do know, at least, is that architecture can make things worse — much, much worse. The site of Aliso Village was originally occupied by a poor neighborhood known as the Flats, where tiny, makeshift houses were crowded together, sometimes as many as three per residential lot. The project that replaced the Flat was called Aliso Village and could be described as an example of utopian Modernism. In the early 1940s, a team of architects that included Lloyd Wright (son of Frank Lloyd Wright) created a set of U-shaped courtyards or "armadas," framed on three sides by apartment units stacked three stories high. These were scattered like horseshoes across the 35-acre plan, without a strong relationship or continuity among the different complexes. In a few decades, the shortcomings of this design became apparent: The unprogrammed spaces between the individual apartment complexes provided too many places for bad actors to hide. It did not help that Aliso Village was obviously a housing project in an isolated location, just across the Los Angeles River from downtown L.A. Its only neighbor was the equally notorious Pico-Aliso project, which the Los Angeles Housing Authority demolished in 1998 and later rebuilt. By the time the housing authority demolished the original version of Aliso Village in 1999, no fewer than 10 separate gangs operated on the fearful back alleys. Again built under the aegis of the city's Housing Authority, the new project takes advantage of some updated thinking in urban design, as well as plentiful experience and research on the redevelopment of similar neighborhoods nationally. Built under HUD's well-regarded Hope VI program, the new Aliso Village is a set of three different clusters or "villages." As in all HOPE VI projects, the units are a mix of for-sale and rental housing, in the hope of stabilizing the neighborhood with a core of ownership. The first village is devoted to 93 for-sale, detached, single-family homes. The second portion is a combination of courtyard housing and conventional apartments (201 units), while the third cluster has 176 units, most of which are townhouses. The overall density is 21 units per acre, and the rental units are targeted for a range of incomes from very low to moderate. The Lee Group of Marina Del Rey is building the single-family housing, while a venture of The Related Companies of California, based in Irvine, and McCormack Baron & Associates Inc. of Los Angeles are building the rest of the units. McCormack will also manage the property. Unlike the 1940s project, the layout of the new Aliso Village is orderly and rational, with an emphasis on defensibility: the streets are straight and provide to clear sight-lines, and there are few, if any, hidden or hard-to-see spaces. Parking is accessible through rear alleys, which keeps the streets relatively car-free and makes them a little more inviting to people on foot. In a refreshing show of courage and civility, the developers have opted not to erect gates. Seeking to preserve the few assets of an isolated neighborhood, the plan tries to optimize the relationship between the housing and the long-standing Utah Elementary School at the center of the site. In an ingenious land swap, the developers gave the Los Angeles Unified School District a new child care center near Utah Elementary in exchange for an acre or so of the green space just west of the school. The site will become fenced ball fields that the neighborhood can use after school lets out, and which are locked up after hours. Additionally, the developers are negotiating with the school district to build a middle school at the lower left hand corner of the plan, where retail was originally envisioned. A further benefit to the area is a future station of the Red Line subway, planned just east of Mission Road and First Street. In short, the project has many things going for it: defensible design, landscaping, home ownership, a variety of incomes, a mix of housing types, coherent streets and transit adjacency. Best of all, perhaps, the new Aliso village does not look like "the projects." Will these factors finally help turn around one of Los Angeles's most stubbornly scary neighborhoods? Or are social forces simply too virulent to be cured by some well-meaning design moves? The question here is whether urban design, including some of the more viable notions of the New Urbanism, can add safety and comfort to what had been one of Los Angeles's worst neighborhoods. A first response might be skeptical: What culture (or the poverty cycle) has denied, architecture cannot provide. The advantage of the present project is its modesty. The goal here is to create a more or less normal neighborhood with an emphasis on defensibility. Aliso Village is not a shot at utopia, but a reflection of experience. "There is evidence from other community developments of this type that if you pursue this path and have enough of a clean slate as you do here, you can right a lot of the wrongs," said developer Bill Witte, senior vice president of The Related Companies. With 35 acres, he added, "you can redefine the context." Here, at least, architecture has done what it can to support safety and continuity, and it has avoided the worst of the known pitfalls of public housing. The project strives not to be utopia, but a functional neighborhood with some known problems. The new Aliso Village is starting life with its eyes wide open.

The time has come to call rail transit a planner's pipe dream. Californians have poured tax money into rail for more than a decade, apparently on a well-intentioned aspiration that if we build tracks, we will ride the train. But according to a U.S. Census report on trip-to-work travel, Californians have not found the train station. In fact, trip-to-work transit mode data in the 2000 decennial census is dismal. This is a tough pill for us planning professionals to swallow. I like the idea of riding a sleek light-rail train into a pedestrian-friendly California urban center as much as the next planner. But it is time to face the facts. I also like riding the Monorail around Disneyland, but none of us ever bought Walt's line that it was the transportation system of tomorrow. The census data is clear and stark: the use of public transportation as a mode of travel to work has grown only by one tenth of a percent of all transportation modes during the 10-year span. What's worse is that the "drove alone" mode increased by two tenths of a percent of all work travel trips during the same period. This is not a good trend line for rail advocates to cite. This information flies in the face of the expectations established with the public while we were convincing ourselves to invest heavily in rail. According to the Legislative Analyst's Office, 9% of the state's transportation dollar is currently going to rail. This funding is commonly augmented by local sales taxes in urban counties. The communities that have a sales tax and a rail system allocate huge chunks of the local taxes to rail projects. But this is just in from the Census: Rail trips to work account for only slightly more than 1% of the total trips to work in California. Despite earlier investments in the Bay Area and San Diego during the 1970s and 1980s, it was really the 1990s when urban rail system expansion shifted into third gear. Sacramento, San Jose, and Los Angeles all opened significant light rail systems. Los Angeles County went even further, launching a multi-county heavy rail system and introducing its Metrorail subway. Meanwhile, the Bay Area saw significant extensions of BART and the introduction of state-funded heavy rail from the Central Valley exurbs. San Diego expanded the Trolley and introduced regional heavy rail commuter service to its coastal suburbs. All this investment should produce results, right? When digging deep, one can find a limited amount of good news. For example, of all of the modes of travel to work tracked by the Census, rail experienced the largest percentage increase since 1990: 57%. However, we started with very low numbers. In 1990, only 95,000 of 13.9 million daily California work trips were via rail, according to the Census Bureau. Even worse, some of the 2000 rail trips may have come at the expense of other forms of transit. Buses, for example, dropped as a means of work travel by about 2%. And raw number growth was still by far the greatest in the "drove alone" category, which logged an increase of more than 450,000 trips per day from 1990 to 2000. Even in San Diego, where the Trolley was expanded twice during the 1990s and heavy rail was introduced to the north coastal suburbs, drive-alone trips to work surged from 71% in 1990 to 74% in 2000. Meanwhile, transit trips grew to only 3.4% of total work trips in 2000 from 3.3% in 1990. In San Joaquin County, where two heavy rail services were essentially first introduced in the 1990s, the data is little better. Drive-alone trips at least remained essentially unchanged from 1990 to 2000, holding strong at 74.6% of work trips. Transit trips grew a smidgen from 1.19% to 1.43%. One is forced to concede the apparently obvious: The nature of housing and job growth in a spatially dispersed pattern far outpaces the ability of fixed-line transit systems to make a dent in the overall commuting patterns. While we construct one linear system from housing to a job center, 10 more job centers and 100 more housing developments sprout up off the transit line. We will never catch up. This is what rail critics have been saying all along. So even though we continue invest in rail, let's adjust our expectations downward, and quit fooling ourselves. And, after all, the Monorail is fun to ride.

The budget crisis in Sacramento has led Gov. Gray Davis to propose a wide-ranging set of spending cuts, tax increases and revenue shifts — including reductions in redevelopment funds and tax revenue allocated to cities and counties — that could have a significant effect on land use planning. Although the Davis administration does not appear to be making deficit-reduction proposals based on their land use implications, there is no doubt the recommendations would have a major impact on the state's growth if they were implemented. As is usual when Sacramento bleeds red ink, local governments are lobbying to protect their funding. The Davis administration has put forth proposals that would cost cities and counties at least $5.1 billion during a 17-month period beginning this month. And the reductions would increase over time under the governor's plan. The Legislature's Democratic leadership, however, appears willing to challenge the governor and to protect the largest sources of local government funding at stake. No one pretends to know how the budget will play out. As of late January, $8 billion separated the Department of Finance's and the Legislative Analyst's Office's estimates of the budget deficit. "We're really early in this," one Capitol aide emphasized. "You're going to see a lot of proposals. It sort of creates an opportunity for real change." Among the Davis budget proposals that could affect planning and development are: • Requiring local redevelopment agencies to pass through property tax increment to schools. This administration proposal would shift about $1.3 billion annually — about half of all redevelopment property tax increment in California — from redevelopment agencies to schools, according to the California Redevelopment Association (CRA). • Eliminating the state's "backfill" of vehicle license fees to local governments. In 1998, the state cut vehicle license fees (VLF) — which go to cities and counties — by two-thirds. But the state backfilled the local revenue loss with state general fund money. Eliminating the backfill would cost cities and counties about $3 billion annually. Assembly Speaker Herb Wesson (D-Culver City) has proposed returning licensing fees to their 1998 level. But there could be strings attached to the money, such as requiring a local government to have a certified housing element or meet housing production goals. • A new reliance on revenue from American Indian casinos that could lead to dramatic increases in the size and number of casinos. • Elimination of state general fund support for transportation projects. This proposal would essentially kill the Transportation Congestion Relief Program that the governor himself introduced to great fanfare in 2000 — and would throw into limbo more than a 100 projects for which money had earlier been promised. • Elimination of the Williamson Act backfill to counties. At least some counties would likely discontinue the program, which provides property tax breaks to landowners who agree not to develop agricultural land. While interest groups are protecting their turf during what is expected to be a prolonged budget battle, just about everyone agrees that the size of the deficit forces difficult choices. "It would be nice to know how he arrived at the cuts he suggested," said Sande George, lobbyist for the California Chapter of the American Planning Association. "Some of these things seem odd." The size of the deficit Since he was re-elected in November, Davis has repeatedly emphasized the budget deficit's scope. The governor and the Department of Finance have lumped together the current budget year deficit with the projected 2003-04 fiscal year gap, an unusual approach that magnifies the problem. In December, the governor pegged the two-year deficit at $34.6 billion — compared with the LAO's estimate of $21.1 billion released only one month earlier. Most of the state general fund pays for education and social services. So, if the governor's estimate is correct, the Legislature could eliminate every state program, including the prison system and the universities, and still not balance the books, according to the California Budget Project. Republicans charged that the governor inflated the size of the deficit in an attempt to make tax increases more appealing, a charge the Democratic governor has denied. In mid-January, the LAO reviewed the governor's budget and boosted its estimate of the two-year deficit to "the $26-plus billion range." The LAO, however, downplayed the difference. "Regardless of which baseline is used," the LAO report states, "it is extremely important that the Legislature take timely and meaningful action to address the budget shortfall, which by any standard is extremely daunting, and will only get worse if left unaddressed." This deficit is unusual because California is not in a major recession, said Fred Silva, an analyst with the Public Policy Institute of California. State budget deficits of the early 1990s, early 1980s and throughout the 1930s were directly tied to general economic distress. There are three ways to solve the problem — raise taxes, cut spending and carry a debt. The administration has proposed all three, with the biggest emphasis on cuts. But the administration also proposes carrying over a deficit of $5.8 billion from this year to next. That is equal in constant dollars to the deficits that the state carried during the Depression, Silva noted. Redevelopment under fire The state's first move to get at redevelopment funding came during the early 1990s, when Sacramento ordered two shifts of redevelopment funds to schools. The shifts totaled $270 million over two years, but were not permanent. For the current fiscal year, lawmakers shifted $75 million from redevelopment agencies to schools. But the big hit is part of the mid-year budget adjustments announced in December, when the governor told redevelopment agencies to send all of their "unencumbered" housing funds to Sacramento. The Department of Finance said redevelopment agencies were holding $500 million in housing set aside money for which they had no plans. Redevelopment agencies and housing advocates cried foul, but the mid-year proposal was only the beginning. The administration's 2003-04 fiscal year proposal called for shifting $250 million of property tax increment from redevelopment agencies to schools, and increasing that amount every year (the administration did not define the period) until it reached the full amount diverted by redevelopment agencies from schools. "There seems to be another agenda here," said John Shirey, executive director of the CRA. "And I think the agenda is to considerably reduce redevelopment activity in California." Noting that the governor has asked for everyone to share the pain, Shirey said the proposed redevelopment changes "don't represent in any way a proportional share of the pain that I think probably has to be shared. It ends up taking half of the increment that redevelopment agencies currently receive." The proposal to take the redevelopment agencies' low- and moderate-income housing set aside money received a cool reception during budget hearings in the Legislature. The administration insisted that any housing money not encumbered — that is, legally obligated — as of December 1, 2002 was available for the state's taking. But redevelopment agencies conteded that most of the money in their low- and moderate-income housing accounts was designated for projects. Some of the money would not be legally encumbered, however, until the very end of the pre-construction process. As of January 15, redevelopment agencies had $632 million in low- and moderate-income housing funds, according to the CRA. Of that amount, $489 million has been committed to projects through binding agreements. Agencies have committed another $318 million without formal agreements — meaning the agencies have overcommitted by $175 million. "Redevelopment money is the first in and the last in," said Shirey, who noted that affordable housing projects take years to put together. The California Coalition for Rural Housing estimated that the administration's proposal would halt nearly 50 projects involving construction, acquisition or rehabilitation of about 1,650 units. Housing advocates argued that no constitutional basis exists for the state to take the money. And a briefing paper for a joint hearing of the Senate housing and local government committees suggested the administration's proposal actually rewarded communities that have dragged their feet on meeting their affordable housing obligations. The same briefing paper questioned the rationale for shifting tax increment to schools on a permanent and growing basis, and how local agencies would meet bond repayment obligations. "While some cities may still seek the eminent domain and bonding powers of redevelopment agencies, there would be little to no fiscal benefit to property tax increment financing if the schools' share permanently disappears. Community revitalization of California's most blighted neighborhoods would slow and deposits to L&M Funds would drop drastically," the report states. The briefing paper presents a number of options, including a temporary moratorium on the expansion of redevelopment activities, extending redevelopment deadlines by a year to let agencies recoup a one-time shift, and requiring underlying cities or counties to guarantee an agency's bond payment. League of California Cities' spokeswoman Megan Taylor said the cuts to redevelopment make no sense when the governor's stated priority is "jobs, more jobs and even more jobs." Redevelopment, she said, "is one of the most important job-creation engines in the state." Vehicle license fees The state's backfill of VLF amounts to 5% to 25% of city and county general fund revenues. Eliminating the money is not an option, said leaders of the California State Association of Counties (CSAC) and the League of California Cities. "What this budget proposal is saying is that local programs are the lowest of priorities," CSAC Executive Director Steve Szalay said. The League and CSAC has found quick allies in the Legislature. Speaker Wesson and Senate Majority Leader Don Perata (D-Oakland) said the state must fulfill the promise it made in 1998, when Sacramento said the fee reduction would not harm local governments. However, at least some lawmakers see the situation as a chance to put teeth in the housing element law for the first time. Until now, the VLF backfill has been 100% discretionary revenue for local governments. But Sen. Joseph Dunn (D-Santa Ana) suggested tying VLF allocations to a city or county's adoption of a housing element certified by the state Department of Housing and Community Development. Sen. Tom Torlakson (D-Pittsburg) proposed that 25% of VLF revenue be based on adoption of a valid housing element. In the future, even more of the VLF revenue could be tied to housing element compliance, as well as to affordable housing production, Torlakson suggested in a January 15 memorandum to other lawmakers. Cities and counties spent the last two years successfully fighting a Dunn bill to link revenues to housing policies and production. "The last thing we need is one more string attached to a fund," said CSAC President and Sonoma County Supervisor Tim Smith. "We can't ignore other services, such as public health and safety." Gambling on the future A major new tax contained in the proposed 2003-04 budget is a $1.5 billion levy on Indian casinos. Currently, tribes with casinos pay about $100 million into a fund that goes to tribes without casinos and for other purposes, according to the LAO. The Department of Finance has proposed a tax similar to those in New York and Connecticut, where the state gets up to 25% of the profits from slot machines. The proposal arises while the administration is starting to renegotiate the three-year-old gaming compact with the tribes. A deal might be possible because tribes want the state to lift the existing cap of 2,000 slot machines per casino. During a speech in mid-January, Davis said he "would not be rigidly opposed to lifting the cap." Slot machines are the big money makers in casinos, so tribes have chafed at the 2,000-machine limit. Raising the ceiling could result in bigger casinos. It is unclear whether the state could get $1.5 billion without allowing more casinos. Under the current compact between the state and the tribes, local government has no land use regulatory authority over the casinos. That, too, could be subject to renegotiation. In the area of transportation, the administration has proposed major reductions this fiscal year and next. The biggest cut is in the Traffic Congestion Relief Program (TCRP), which provides general fund support for transportation projects. The administration proposed cutting the TCRP by $100 million this fiscal year and $1.6 billion during 2003-04. In response to the proposals, the California Transportation Commission in December suspended all allocations except for safety, emergency and seismic projects "to provide an opportunity for the Commission to work with interested parties to develop appropriate action." The newsletter reported that all light-rail and freeway projects are in jeopardy. The budget does provide money to complete an environmental impact report on the proposed high-speed rail system, but the administration proposes rolling the High Speed Rail Authority into the Caltrans bureaucracy. While the cuts to transportation have big price tags, the elimination of $39 million in Williamson Act subventions could have greater land use implications. Under the Williamson Act, owners of agricultural land get property tax breaks if they agree not to develop their property for 10 years. Under the "Super" Williamson Act, the tax breaks are greater for a 20-year assurance of no development. Some counties also offer the tax breaks for protection of open space. The state backfills the lost property tax to counties. Elimination of the backfill, which was proposed last year, would force some counties to drop the Williamson Act program at a time when both Democrats and Republicans say they want to protect farmland, said Brian Dahle, president of the Regional Council of Rural Counties and a Lassen County supervisor. Moreover, Williamson Act contracts are good for 10 years, or 20 years in the case of the Super Williamson Act. Even if a county cancels a contract, the county still loses property tax for the rest of the contract period, Dahle said. "There is no way we are going to be able to come up with the money," he said. "That's really crucial to us." The APA's George questioned how the Williamson Act cut could match last year's AB857, which made protection of farmland a state priority. During his state of the state speech, Davis promised to speed the spending of bond funds. But analysts say the administration will not necessarily put more money into the system because the proposed budget uses bond funds to offset general fund reductions in numerous programs ranging from farmworker housing to roads to environmental restoration. Contacts: John Shirey, California Redevelopment Association, (916) 448-8760. Sande George, California Chapter, American Planning Association, (916) 443-5301. Fred Silva, Public Policy Institute of California, (415) 291-4450. Supervisor Tim Smith, California State Association of Counties, (707) 565-2241. Supervisor Brian Dahle, Regional Council of Rural Counties, (530) 251-8333. Legislative Analysts Office website: www.lao.ca.gov Department of Finance state budget website: www.dof.ca.gov/HTML/BUD_DOCS/Bud_link.htm California Budget Project website: www.cbp.org

After decades of fights over annexation and housing development, voters have provided the City of Watsonville with a long-range plan for growth that spells out where and when the coastal city should grow. Measure U, approved by 60% of voters in November 2002, amends the general plan to dictate what territory the city should annex during the next 25 years. Measure U also blocks the city from annexing other land that is in the city's sphere of influence, and provides for about 2,000 housing units outside the existing city limits. Although a ballot initiative is providing this broad guidance, city officials had a great deal of say regarding the initiative, and the City Council endorsed it during the campaign. As important as Measure U is as a planning document, it might be even more important in helping to settle longstanding feuds among the city, the county, housing advocates, farmers, environmentalists, old-time families, and Latino community leaders. For example, the ballot argument in favor of Measure U was signed by two city councilmembers, a farm bureau representative, a local wetlands activist and a community college district trustee. Measure U was the result of "four years of meeting and talking and compromising," Watsonville City Manager Carlos Palacios said. "It's definitely not everything I personally wanted as the city manager. But it does provide for some new housing and economic development. It does provide a measure of certainty." Ironically, this certainty — which the Santa Cruz Local Agency Formation Commission (LAFCO) and other entities have demanded for years — might be difficult to achieve. Measure U contains timeframes and triggers for annexations. Yet under the Cortese-Knox-Hertzberg Act, the city would have to submit multiple applications to LAFCO over a course of years to implement the initiative. In other words, the city would have to fight new annexation battles for two decades, despite Measure U. So, city officials are talking about some sort of "phased annexation" process, in which LAFCO would approve one large proposal up front. City officials have concluded they need special legislation to accommodate that approach, and they might request a bill this year. The LAFCO has made no policy statements so far and does not even have an application to consider, but Measure U definitely makes the agency's job easier, said LAFCO Executive Officer Patrick McCormick. "It was not a friendly relationship in the past," McCormick said. "It was a lot more work, and it was unpleasant. Now, this is a technical challenge to figure out a way to accomplish the task. We're not fighting one another. … The big tricky question is going to be the nature of the phased approval." A city of nearly 50,000 people located between Santa Cruz and Monterey, Watsonville has provided a great deal of the farmworker housing for the coastal farm industry. That has been a sore issue for some Watsonville community leaders, who believe other jurisdictions treat their city as a dumping ground. However, Santa Cruz County and most of its cities have strong slow-growth policies. Watsonville's more accommodating approach to growth — it grew 42% during the 1990s — has caused the city trouble with farmers and environmentalists, who have fought the city's expansion. In 1999, a group of community leaders formed Action Pajaro Valley, of which City Manager Palacios is co-chairman. The intent was for the group to weigh the future of a 120-square-mile area, which includes Watsonville, the unincorporated community of Pajaro, and farmland and rural neighborhoods in both Santa Cruz and Monterey counties. The Packard and Irvine foundations provided money for a one-year "visioning" process. That visioning process led to a land management plan, a proposed redrafting of Watsonville's urban limit line, and Measure U, explained Lisa Dobbins, Action Pajaro Valley executive director. The organization first got community groups lined up behind the growth strategy, then got those groups to endorse the initiative. Supporters formed a separate entity to run the actual Measure U campaign. In the end, interest groups feared being left out of a political movement that had traction. The initiative offered something for just about everybody, Dobbins said. The farm bureau received some certainty about how the city would expand, environmentalists won assurance the city would not grow between Highway 1 and the coast, business and development interests got room to grow, housing and anti-poverty advocates saw a plan for 2,000 additional housing units, some a which will have affordability and/or age covenants. "This was really a political dance in the sense that if we don't do this, we might get nothing," Dobbins said. Two groups believe they did get nothing: residents in a rural area just north of the city limits known as Buena Vista — which Measure U designates for annexation and housing development — and pilots at the Watsonville Airport. A group called Friends of Buena Vista complain that the city would substantially alter their large-lot, rural neighborhood — a charge to which city officials and Measure U backers plead guilty. Measure U guides much of the city's growth to 395 acres in Buena Vista, which would be built out over the course of 20 years. The city needs to grow somewhere, Measure U backers reason, and Buena Vista is the best choice because it is not prime farmland. But Friends of Buena Vista argue that the city should concentrate on infill and revitalization before annexing new territory. "Extending the ULL is unnecessary; improving existing conditions is imperative," stated the ballot argument against Measure U. Buena Vista residents also complained that they could not vote on an initiative that will change their way of lives; Measure U was a City of Watsonville initiative. Pilots, who have long been on the defensive in Watsonville, fear that the nearby Buena Vista development will put further pressure on the city to close the air field. This opposition is a big reason that Watsonville officials want to line up approval for Measure U's annexations and sphere-of-influence amendments all at once — even if the changes might not take effect for 15 years or more. The city might have LAFCO's support now, but there is no guarantee that backing will exist in 10 years, Palacios noted. Measure U's effect on the general plan is causing the city to rework a general plan update that was already under way. That update needs to continue but also must reflect the initiative. Palacios figures the general plan update will take "a couple of years." "It makes our general plan update easier because it's already been decided by Measure U where growth is going to go," Community Development Director John Doughty said. Still, implementing the initiative is going to be a great deal of work. The city must prepare several specific plans and area plans, and perform environmental review of all the proposals, he said. A recent appellate court ruling regarding environmental review of a series of projects at the Port of Los Angeles could lengthen the process, Doughty added. The decision in (see , December 2002) makes clear that Watsonville needs to do detailed environmental review up front on specific plans that will not be implemented for as many as 15 years, he said. In the meantime, the city could still move ahead on annexing 53 acres of industrial property along Highway 1 because that land is already in the city's sphere of influence, Palacios said. The first phase of the Buena Vista project would likely be next. Contacts: Carlos Palacios, Watsonville city manager, (831) 728-6011. John Doughty, Watsonville community development department, (831) 728-6018. Patrick McCormick, Santa Cruz Local Agency Formation Commission, (831) 454-2055. Lisa Dobbins, Action Pajaro Valley, (831) 786-8536. Action Pajaro Valley website: www.actionpajarovalley.org Friends of Buena Vista website: www.friendsofbuenavista.com

The method of appointing members to the California Coastal Commission has been declared unconstitutional by the Third District Court of Appeal. The ability of the speaker of the Assembly and the Senate Rules Committee to appoint eight of twelve commissioners and remove them at will violates the separation of powers doctrine, the court held. State attorneys likely will ask the state Supreme Court to review the decision. Property rights activists who brought the suit praised the decision and questioned whether the state's high court would take the case. But while the decision initially appeared to be a big victory for landowners and builders, the implications of the ruling are murky. The court made clear it was not touching the previous 26 years of Coastal Commission decisions. And if the court's ruling were to go into effect — it was scheduled to on January 29 — the entire state agency and its regulatory scheme would not disappear. The court did not strike down any portion of the Coastal Act except some sections relating to the appointment of commissioners. State lawmakers said they would cure the constitutional defect, although it was unclear if a legislative solution would satisfy property rights advocates and the court. In the Third District opinion, Presiding Justice Arthur Scotland presented something of a primer on the system of checks and balances. " e conclude that the Commission's interpretation and implementation of the California Coastal Act of 1976 is an executive function, and that the appointment structure giving the Senate Committee on Rules and the Speaker of the Assembly the power not only to appoint a majority of the Commission's voting members but also to remove them at will contravenes the separation of powers clause of California's Constitution. … In a practical sense, this unrestrained power to replace a majority of the Commission's voting members, and the presumed desire of those members to avoid being removed from their positions, allows the legislative branch not only to declare the law but also to control the Commission's execution of the law and exercise of its quasi-judicial powers." California State University, Sacramento, government professor John Syer said the ruling "should not be a surprise." He noted that the U.S. Supreme Court made a similar ruling in 1976, when the court ruled that only the president — and not Congress — could appoint members to the Federal Election Commission. ( , 424 U.S. 1.) "It's about time that the state has caught up with the federal government," Syer said. "They've been out of conformity with federal court rulings for 25 years." The attorney who brought the case, Ronald Zumbrun, said he has been looking for a venue to make his arguments regarding the appointment system for years. However, Superior Court judges have declined to tackle the constitutional issues, he said. This time, however, Zumbrun filed a lawsuit in Sacramento County, where it is not unusual for the Superior Court to decide cases involving the state's authority and the system of government. Sacramento County Superior Court Judge Charles Kobayashi was willing to consider Zumbrun's argument, and in 2001 Kobayashi ruled that the Coastal Commission's composition was unconstitutional (see , June 2001). The Third District upheld that ruling. "I think it's air-tight if it ends up before the California Supreme Court," Zumbrun said. "I think it's possible that the Supreme Court will take it up, but not probable. … They would take it up merely to put their imprint on such an important decision." Scholars, while not necessarily disagreeing with the ruling, predicted the state Supreme Court would likely accept the case. "I cannot imagine the Supreme Court will leave it up to the Court of Appeal to invalidate the entire Coastal Commission," Santa Clara University law professor Gerald Uelmen told the . The lawsuit that raised the constitutional questions involved the Marine Forests Society's construction of a reef from old tires, plastic jugs, PVC pipe and concrete blocks on the ocean floor off Newport Beach. The nonprofit organization built the reef more than 10 years ago, saying it was an experiment intended to aid marine life. In June 1993, the Coastal Commission determined that the Marine Forests Society project was a coastal zone development that required a permit. The commission later refused to approve an after-the-fact permit, and in 1999 the Commission issued a cease and desist order. Marine Forests Society sued, claiming the Commission did not have the authority to issue the order because the way its members were appointed violated the separation of powers doctrine. Marine Forests argued that, as composed, the Commission was actually part of the legislative branch and could make policy — but the Commission could not perform executive or quasi-judicial functions. Judge Kobayashi agreed and enjoined the Commission from granting or denying permits and from issuing cease and desist orders. The Third District stayed the injunction while considering the Commission's appeal, but the appellate court eventually ruled that Kobayashi was right and his injunction was proper. The Coastal Commission is a 12-member panel created by the Coastal Act (Public Resources Code § 30000 et seq.). The governor, the Assembly speaker and the Senate Rules Committee each appoint four members for two-year terms. Commissioners can be removed at any time. The Commission argued that the state constitution does not prevent the Legislature from appointing members to an executive branch agency, and that then-Governor Jerry Brown voluntarily gave the Legislature the right in this instance. The Third District, however, said the relevant question is "whether the appointment mechanism in §§ 30301 and 30312 … undermines the authority and independence of the agency." The court answered yes. "There are no safeguards and checks which would serve to ensure that the Commission is under the primary authority and supervision of the executive branch," Justice Scotland wrote for the unanimous three-judge panel. "Rather, the retention by the Legislature of virtually unfettered power of appointment, and wholly unfettered power of removal, over two-thirds of the voting members of the Commission serves to ensure that the Commission is under control of the Legislature." "This is not merely a paper conclusion," Scotland continued. "It is a political reality." He pointed to the Commission's own argument that it functions free of executive branch authority. Scotland cited , (1986) 478 U.S. 714, in which the U.S. Supreme Court ruled that Congress could not remove the U.S. comptroller general, who was charged with identifying budget cuts for the president when the federal deficit reached a certain point. "To permit an officer controlled by Congress to execute the laws would be, in essence, to permit a congressional veto," the court held in . That kind of congressional control is unconstitutional. Finally, the Third District ruled that the governor cannot allow the Legislature to usurp his authority to make executive branch appointments. The court made clear its opinion concerned only this case and was neither retroactive regarding Coastal Commission decisions, nor applicable to other executive branch agencies to which the Legislature appoints members. The Case: , No. C038753, 02 C.D.O.S. 12484, 2002 DJDAR 14692. Filed December 30, 2002. The Lawyers: For Marine Forests Society: Ronald Zumbrun, (916) 486-5900. For the Commission: Lisa Trankley, deputy attorney general, (916) 327-7877.

Environmental advocates challenging federal agency interpretations of the Endangered Species Act were victorious in one case at the Ninth U.S. Circuit Court of Appeals, but lost a second case. The late-2002 decisions both came on 2-1 rulings, and the decisions appeared in one aspect. Environmentalists won a case involving the U.S. Fish & Wildlife Service's interpretation of a statutory deadline for making an Endangered Species Act (ESA) determination on a species. The court struck down the agency's practice that gave the agency an indeterminate amount of time to act on a petition for a species listing. In the second case, a different panel of the Ninth Circuit ruled that the U.S. Forest Service could continue to allow cattle to graze in endangered species habitat while the agency reviewed whether the grazing would impact the species. The first case stemmed from environmentalists' submission to the Fish & Wildlife Service (USFWS) of four petitions to list as threatened or endangered four species: the Spalding's catchfly, the mountain yellow-legged frog, the Great Basin redband trout, and the yellow-billed cuckoo. Environmental groups submitted the four petitions from 1995 to 1998. The agency did not take final action on the petitions, so the groups sued. District Court Judge Garr King ruled that the Fish & Wildlife Service had discretion under the Endangered Species Act to delay findings on whether listing of a species is warranted until after the statutory 12-month deadline. However, Judge King also refused to grant the USFWS request for additional time to make court-ordered decisions on three species. Each side appealed the portion of the case it lost. The split Ninth Circuit panel ruled squarely for environmentalists. The issue is a familiar one to ESA litigation. Once a petition to add or remove a species from ESA listing is submitted to a responsible agency, the agency has 90 days to determine whether there is enough information to warrant further review. If so, the agency has one year from the date the petition was submitted to determine whether the species listing is warranted, not warranted, or warranted with exceptions. The Fish & Wildlife Service pointed to language in the ESA that requires action by the 90-day deadline "to the maximum extent practicable;" therefore, the agency argued, it has discretion to postpone action on the petition indefinitely. But the Ninth Circuit said the USFWS's interpretation would render the statutory one-year deadline for a final decision inoperative. "We rule that Congress intended to limit the flexible deadline governing the initial listing determination by enacting the firm deadline for making the final determination. Both determinations must be made within one year," Judge Johnnie Rawlinson wrote for the majority. The court rejected USFWS arguments that the petitioners did not have standing and that the case was moot because the agency made decisions on the four species after the litigation was initiated. The court held that the environmental groups had standing because their members desire "to use, observe and study the stated plant and animal species." Moreover, the parties had an ongoing conflict over interpretation of this portion of the ESA, the court ruled. As to mootness, the court ruled that the "repetition/evasion exception" was applicable because in at least five other cases, the agency made listing determinations after a lawsuit was filed. "As the district court noted: ‘Although the species at issue change, these parties have been through the same controversy many times, with the lawsuits appearing to spur the into action,'" Rawlinson wrote. In a dissent, Judge Susan Graber wrote that the environmental groups did not have standing because they did not present evidence they had been harmed. Plus, Graber wrote, the USFWS's species determinations made the lawsuit moot anyway. She found that "the pleadings and the record do not establish a substantial, ongoing dispute between the parties" over the ESA. The second case involved livestock grazing in the habitat of the loach minnow, a species listed as threatened under the ESA. Environmental groups asked a federal judge to block the Forest Service (USFS) from allowing grazing while the agency was studying the grazing's impact on the rare fish. They argued that Section 7(a) of the ESA prohibited the USFS from allowing an activity during the "consultation" process, which involved a biological opinion and an examination of alternatives by the USFWS. Environmental groups argued that Section 7(a) required the court to issue an injunction until the consultation process was complete. District Court Judge John Roll refused to issue the injunction. Although he found that the USFS never completed the consultation process on the grazing allotments in question, there had not been a showing of irreparable harm, he ruled. Allowing the grazing was consistent with Section 7(d) of the ESA because the record showed that habitat conditions were improving on the grazing allotments, Judge Roll ruled. The court also balanced the hardships between the parties. The Ninth Circuit upheld Roll, although it did find that a balancing of hardships was inappropriate. The majority ruled that the case "does not present a ‘substantial procedural violation'" that triggered an automatic injunction. This was a case where "non-jeopardizing action" may take place during the consultation process under Section 7(d). "This case is not one where once the action is initiated there can be no turning back, as in a case where timber is cut, or wherein the action will unquestionably make it unlikely that the species will survive," Judge William Bertelsman wrote for the majority. "The district court noted that the Forest Service was implementing mitigations to ensure that the cattle grazing would have little, if any, impact on the loach minnow while formal consultation was taking place," Bertelsman continued. "The consultation was ongoing and was nearing completion." In a dissent, Judge William Canby Jr. wrote that the court cannot make biological decisions. "I do not believe that Section 7(a)(2) would permit actions that might threaten members of endangered species even if those actions were reversible and thus not within the proscription of Section 7(d)," he wrote. The court in both of these cases cited the same precedents, but made different interpretations. The cases were , 437 U.S. 153 (1978), and , 816 F.2d 1376 (9th Cir. 1987). The court in the case involving the USFWS listings noted that , and the ESA made clear that the court must issue an injunction for Section 7 violations and that the normal discretion of the court was foreclosed. But in the grazing case, the court ruled that was distinguishable because it involved irreparable harm. And , the court ruled, carved out the exception for non-jeopardizing actions. First Case: , Nos. 00-35076, 00-35089, 02 C.D.O.S. 10902, 2002 DJDAR 12632. Filed November 4, 2002. The Lawyers: For BLF: Daniel Rohlf, Pacific Northwest Environmental Advocacy Center, (503) 768-6600. For Badgley, M. Alice Thurston, Department of Justice, (202) 514-2000. Second Case: , Nos. 01-16092, 01-16277, 02 C.D.O.S. 10101, 2002 DJDAR 11530. Filed October 2, 2002. The Lawyers: Southwest Center: Susan Daggett, Earthjustice Legal Defense Fund, (303) 623-9466. For USFS: Sandra Slack Glover, Department of Justice, (202) 514-2000.

Caltrans did not need legislative approval to acquire parkland that San Diego County had purchased earlier with state park bond money, the Fourth District Court of Appeal has ruled. The court rejected the argument from park supporters that Caltrans could not convert the land to road use without approval of the state Legislature. At issue in this case is a portion of the Sweetwater Regional Park in southern San Diego County. The county originally acquired a portion of the parkland, known as "Area 19," with money from the Cameron-Unruh Beach, Park, Recreational and Historical Facilities Bond Act of 1964. Among other things, the act provided $40 million for grants to local agencies for the acquisition and development of property for public parks and beaches. During the 1990s, Caltrans proposed an 11-mile-long toll road through the park connecting Highways 54 and 905. Caltrans planned to acquire Area 19 from the county for the toll road. n May 2000, a group called Preserve South Bay filed a lawsuit against the California Transportation Commission, arguing that the state could not acquire Area 19 without legislative approval for converting the land to a non-park use. San Diego County Superior Court Judge Charles Hayes ruled for the state. Preserve South Bay appealed. The organization contended that the 1964 bond act required that land purchased with the money be used as parkland unless the Legislature provided a specific exemption. They contended the requirement extended to any entity. But the unanimous three-judge appellate panel upheld the lower court, ruling that the limitation applied only to the local agency that originally purchased the land — and not to a state agency. "The plain language of § 5096.27 shows it applies solely to a contract between the state and a grantee, or local agency," Justice Judith McConnell wrote, citing the 1964 bond act. "Section 5096.27 does not address a state agency's acquisition of park property purchased by a local public agency under the Cameron-Unruh Act." This interpretation, McConnell wrote, is consistent with Streets and Highways Code § 103.5, which states in part: " he real property which Caltrans may acquire by eminent domain, or otherwise, includes any property dedicated to park purposes, however it may have been dedicated, when the commission has determined by resolution that such property is necessary for state highway purposes." Preserve South Bay argued this section of the Streets and Highways Code was not applicable because Caltrans had not adopted a "resolution of necessity" to take the property via eminent domain. But the court said the lack of a resolution did not matter. "If the project proceeds, a resolution of necessity will be required before Caltrans may acquire Area 19 through eminent domain, but whether it has adopted a resolution at this point is immaterial," the court ruled. The Case: , No. D038865, 02 C.D.O.S. 11888, 2002 DJDAR 13953. Filed December 11, 2002. The Lawyers: For Rolfe: Thomas Mauriello, (415) 677-1238. For the CTC: Bruce Behrens, CTC, (916) 654-2630. For San Diego Regional Transportation Commission: Julie Wiley, SANDAG (619) 595-5647.

How many public hearings have you attended in which a development opponent or neighborhood organizer says he can't support 10 units an acre, but 6 might be acceptable? Or if 20 units an acre are proposed, maybe 10 would be OK. Do you think anybody in the room — including the activist — can actually imagine what the difference looks like? Density, whether high or low, is not inherently good or bad. It all depends on the project and its environs. The Massachusetts-based Lincoln Institute of Land Policy has a new website called " Visualizing Density ." The website and an associated new book of the same name by Julie Campoli and Alex S. MacLean clearly endorse the concept of efficient land use, which means higher densities. What makes the website and the book so fascinating, though, is the photos. They vividly illustrate that development, whether high-density or low-density, can be not only ugly but impractical. The number of units per acre is not a deciding factor. Have a look for yourself. Planners, developers, housing advocates and academics may find these photos and other tools on the Visualizing Density website to be useful — especially when public hearings devolve into debates about units per acre. You'll need to register for the Lincoln Institute website, which is free. But if you're serious about land use policy, you should already be signed up because Lincoln does thought-provoking work. - Paul Shigley

Alameda Superior Court Judge Frank Roesch sent shock waves rippling through California's water community in late March when he ordered the giant pumps at the heart of the State Water Project (SWP) to shut down, potentially cutting off water to two-thirds of the state's population. The order didn't take effect immediately — Roesch gave the state time to rectify the situation before pulling the plug — but the nearly apoplectic reaction was swift and distributed as widely across California as the SWP's customers. And it added an emphatic coda to several weeks' worth of intensifying focus on the crumbling foundation of the state's most critical public asset. The Harvey O. Banks Pumping Plant, located west of Stockton in the problem-plagued Sacramento-San Joaquin River Delta, has been forced to halt operations before, but usually because of such calamities as levee failures and toxic spills rather than judicial fiat. On March 22, however, Roesch ruled that the Department of Water Resources (DWR) was violating state law because it never obtained the permits required to kill threatened and endangered fish during plant operations — a routine occurrence that many scientists and activists believe has helped push several Delta fish species toward extinction. Roesch gave the state 15 days to submit additional information before his ruling was to become final, and said the state would have 60 days after that either to obtain the permits or to halt pumping. The Delta matters to California for many reasons, principal among them the region's role as a linchpin in two water-supply systems: the SWP, which pumps water from the Delta and sends it on its way to more than 20 million urban users in Southern California, and the Central Valley Project, which also pumps water from the Delta and delivers it by canal to irrigate several million acres of Central Valley farmland. And the Delta is at risk, as numerous reports have detailed over the past decade. Salt and pollutants threaten water quality. Most of the land in the Delta is below sea level and sinking, at the same time that sea level is rising. The 1,100-mile network of earthen levees protecting farms, pumping plants and other critical systems are poorly built and poorly maintained. A study prepared last year for DWR estimated that there is a two-in-three chance of multiple simultaneous levee failures within the next 50 years. That level of disaster could halt water exports and cost the state as much as $40 billion. The native Delta ecosystem also appears to be collapsing, with several species continuing to decline despite years of study and an investment of millions of dollars in ecological restoration in the Delta and the rivers that feed it. Invasive species are believed to be partly responsible for the decline of native flora and fauna, along with pollution and climate change. But experts also point a finger at the operation of the SWP and CVP pumps, which not only suck up and kill fish directly, but also alter water flows to such a degree that fish become fatally confused trying to make their way between upstream tributaries and the sea. The March 22 ruling in Alameda County Superior Court represented a surprising and total victory for the obscure organization that brought the suit. Watershed Enforcers, an arm of the California Sportfishing Protection Alliance, sued DWR in October 2006, contending that the agency had never obtained an incidental take permit allowing it to kill fish — specifically winter-run Chinook salmon, spring-run Chinook and delta smelt — protected by the California Endangered Species Act (CESA). DWR argued that although it didn't have a take permit for salmon and smelt from the Department of Fish and Game, it had something just as good: several fish-protection agreements with DFG that predated the Legislature's 1997 revision of CESA. Those agreements, DWR contended, were specifically recognized in the revised statute as authorizing the incidental take of protected species as a consequence of the Banks Pumping Plant operations. The judge looked hard but said he could find nothing in any of those agreements that specifically authorized DWR to kill salmon and smelt under the provisions of CESA. One of the agreements DWR cited dates to 1986, before any of the three species had even been listed as threatened or endangered, and therefore could not possibly have authorized the species' take as a consequence of the pumping plant operations. The other documents consist mainly of descriptions of process rather than anything concrete that commits the DWR to address the needs of fish — which some critics would argue is the most salient characteristic of the faltering, decades-long effort by state and federal agencies to fix the ecological mess in the Delta. "The best that can be said," the judge wrote, "is that the documents accept that fish will be killed in the Harvey O. Banks Pumping Plant Operations and that the parties agree that mitigation measures will be undertaken." Roesch also concluded his ruling with a sort of judicial sigh, noting that the one agency that could have declared definitively that the DWR had been issued a take authorization — the Department of Fish and Game, which is granted that authority under CESA — contributed not a single document or comment to the proceedings. "The court regrets that an important case such as this one must be decided without all the possible relevant information," Roesch wrote. His thinly veiled exasperation was echoed in more forceful terms several days later when state senators demanded to know why, 19 months after they first asked about DWR's lack of a permit to kill fish, the agency had still not obtained one or even asked DFG to issue one. "Even today, Fish and Game and DWR don't even seem to recognize the problem," said Sen. Mike Machado (D-Linden), who chairs the Senate's Delta Resources Subcommittee. The reaction among water-industry leaders to the decision was somewhat oblique. They were unanimous in declaring the judge's ruling to have been wrong, but dwelled more on the magnitude of economic harm it could cause than on any alleged flaws in his facts or reasoning. "We find the prospect of curtailing pumping to be unacceptable in terms of the economic consequences to the state," said DWR Director Lester Snow. "We are disappointed with the court's proposed ruling and believe the court has interpreted the statute narrowly and has not properly accounted for the state's intent to comply with the spirit of the law," said Steve Hall, executive director of the Association of California Water Agencies. But even critics of the ruling were unanimous in suggesting that it offered compelling evidence — in case anyone really needed the reminder — that the status quo in the Delta serves no one's interests well and will likely lead to disaster. Roesch's ruling, likely to be appealed, came just a month after the Public Policy Institute of California (PPIC) issued a comprehensive review of several approaches to remedying the long-term ills of the Delta. Release of the PPIC report coincided with Gov. Arnold Schwarzenegger's appointment of a "Delta Vision" task force to develop a comprehensive package of policies and projects for the Delta that address its multiple roles and multiple liabilities. The PPIC report, envisioned as providing an historical, scientific and analytical framework for the work of the governor's task force, concludes that several options frequently put forth as Delta "solutions" simply make no sense because their costs greatly exceed their benefits or because they fail to actually solve any problems. Written by a team of researchers both inside and outside PPIC, it draws heavily on the years of work invested in studying the Delta by UC Davis geology professor Jeffrey Mount and fisheries biologist Peter Moyle, as well as specialists in engineering and economics. They evaluated a suite of alternatives broadly divided among three scenarios: one in which the Delta remains a freshwater system, something nature never intended it to be; another in which salinity is allowed to fluctuate more or less naturally, and one in which water exports from the Delta are reduced or even halted. Within each of those broad scenarios, they looked at more specific strategies and tried to gauge the effect they would have on water quality, ecosystem integrity and the long-term stability of the system. Simply walking away would not work, they concluded, because the Delta ecosystem has been too compromised by more than a century of meddling. The business-as-usual approach also should be disregarded, they recommended, because of the system's demonstrated fragility and the likelihood it will deteriorate over time. Also worth ignoring, they said, is the option of spending billions of dollars on mammoth salinity barriers and giant armored levees — the "fortress Delta" approach. The costs are too high and neither option addresses the collapsing ecosystem, they said. Several options are worth investigating further, they concluded. These include a canal bypassing the Delta — a resurrected Peripheral Canal similar to the one rejected by voters in 1982 and anathema to politicians ever since — as well as variations on that approach that route water around the Delta to the lower San Joaquin River or convey it through the Delta in an armored canal. They also recommend examining what they call the "opportunistic Delta" approach, in which exports would occur only during times of particularly high flows in the river systems. This would require storage somewhere else. And they also encourage further evaluation of a scenario under which the Delta is restored to a more or less natural but managed state, as a giant ecological preserve. That last vision echoes one assembled a year earlier by students in UC Berkeley's Department of Landscape Architecture and Environmental Planning, who noted that urbanization in the flood-prone Delta is accelerating and projected to result in a doubling of the region's population by 2050. The paper the students produced calls for creation of a giant regional park encompassing all the Delta lands, assembled through the activities of a land conservancy like the one responsible for acquiring open space in the Santa Monica Mountains. Such a park, they suggested, could combine preservation of farming activities with recreation, ecological restoration and maintenance of historic "legacy towns" important to the region's identity. It is likely that any successful (meaning: politically and financially possible) strategy will encompass elements of several of the alternatives that have been put forth. But the question remains whether the burst of attention drawn by the Delta since 2005, when hurricanes Katrina and Rita showed what can happen when poorly designed levees fail, will make more progress in the near future than it has in the past decade. Speaking in February, during a meeting of the American Association for the Advancement of Science in San Francisco, Mount was blunt about the shortcoming of the state's current approach to the Delta. "Hope is not a strategy," he said. Contacts: PPIC Report: "Envisioning Futures for the Sacramento-San Joaquin Delta": http://www.ppic.org/main/publication.asp?i=671UC UC Berkeley's "ReEnvisioning the Delta" report: http://landscape.ced.berkeley.edu/~delta/ Judge Frank Roesch's decision in Watershed Enforcers v. Department of Water Resources, No. RG06292124: http://www.alameda.courts.ca.gov/courts/ Steve Hall, Association of California Water Agencies, (916) 441-4545. Lester Snow, Department of Water Resources, (916) 653-7007 The Public Policy Institute of California released a detailed analysis of the Delta in February. The report, "Dealing with the Delta: Envisioning Futures, Finding Solutions," makes this observation: "As an immediate response to concerns over the health of the levee system, the state significantly increased the budget for levee repairs in 2006, and two bond measures passed in November 2006 allocate additional funds for flood control in the Delta. But there is as yet no broader plan for responding to the crisis in the Delta, including how the bond funds should be spent. Some planning efforts are now under way, including the Delta Vision process, launched by the governor in fall 2006. As these efforts go forward, some new ways of thinking about the Delta should be taken into account. "First, a comprehensive solution for the Delta needs to consider the new understanding of the Delta's ecosystem that has emerged over the last several years. For the past 70 years, the state's policy has been to maintain the Delta as a freshwater system. However, to address the problems of the Delta's native species, a fundamental change in policy is needed. A Delta that is heterogeneous and variable in terms of its salinity levels and water flows is more likely to support native species than is a homogenously fresh or brackish Delta. It is also more likely to reduce the efforts of invasive alien species, which tend to thrive in more homogeneous environments. … "Second, new management solutions must also include goals for the human use of Delta resources — including land use, and water supply and quality. But again, a change in thinking is necessary, particularly in terms of the ability to satisfy all goals simultaneously. The approach adopted by Cal-Fed in the mid-1990s was the ‘everyone would get better together,' and it was assumed that this could be achieved by managing the Delta as a single unit, simultaneously achieving improvements in habitat, levees, water quality and water supply reliability. Going forward, California will need to recognize that the Delta cannot be all things to all people. Tradeoffs are inevitable." Alameda County Superior Court Judge Frank Roesch dealt primarily with the assertion from the Department of Water (DWR) that it had legal authority to kill — "take" in legal parlance — protected species of fish while operating the State Water Project's Harvey O. Banks Pumping Plant in the Delta. In his proposed statement of decision, Judge Roesch wrote: "The best that can be said for the five documents put forth by DWR as a pre-1997 agreement for compliance with the incidental take requirements of the CESA , read separately or as a whole, is that the documents accept that fish will be killed in the Harvey O. Banks Pumping Plant Operations and that the parties agree that mitigation measures will be undertaken. While the documents certainly demonstrate the fact that DWR was and has been attentive to the issue of the incidental take caused by the pumping plant operation, it cannot be said that the documents state any agreement by the DFG authorizing the take of any species of fish, endangered or not." "Examining the documents advanced by DWR, it is clear that contrary to the assertion of respondent , they do not qualify as the carte-blanche authorization of incidental take at the Harvey O. Banks pumping plant operation for all species of endangered fish …"

Nearly two years ago, when the U.S. Supreme Court's 5-4 decision in came down, reported that the ruling wouldn't have much impact on California. And we were right, according to Jerold Kayden, co-chairman of the Department of Urban Planning and Design at the Harvard Graduate School of Design. The decision was no surprise because the court majority simply reiterated established constitutional principles, said Kayden. The Harvard professor delivered his thoughts on at a workshop conducted April 26 and 27 at the Lincoln Institute of Land Policy in Cambridge, Massachusetts. Over the course of two days, academics, smart growth advocates and journalists repeatedly returned to the Kelo decision as a touchstone. In , the court ruled that a public agency (in this case, a quasi-public community development corporation) could use eminent domain to acquire private property to accommodate an economic development project. When the decision came down, reported that the decision would have no apparent impact in California because redevelopment agencies have had such eminent domain authority for many years and may exercise it in areas declared "blighted." (See Supreme Court Upholds Use of Eminent Domain for Development , , July 2005.) It is long settled that there is no constitutional difference between eminent domain for a "public use" (such as a highway or school) and eminent domain for a "public purpose" (such as economic development), said Kayden, a planner and attorney. The real story of , said Kayden, was — and still is — the public, media and political response. The popular press portrayed as a frightening expansion of eminent domain authority. Property rights advocates capitalized on the decision with a great public relations campaign that suggested every middle-class family was at risk of losing its house. And politicians on both the right and left demanded reforms. No fewer than four speakers during the two-day Lincoln Institute workshop mentioned a 2006 edition of magazine. The cover of the normally fluffy Sunday newspaper insert featured a white bread family of five standing in front of a house, beside the headline: "Will The Government Take Your Home?" Ouch! What's a poor city planner to do? Kayden said, and other speakers suggested, that proponents of urban redevelopment have not made their case well. Planners have failed to convincingly explain how public-private partnerships actually serve the public. It probably doesn't help planners when the facts are not on their side. During the Lincoln Institute session, Tom Condon, a reporter who is from New London, panned the development plan that he said had little public support. He noted that the city took Susette Kelo's house to make room for a marina parking lot. A planned hotel would make far more sense about a mile away in the downtown, said Condon, who noted that the community development corporation in charge of the project ignored its best planner. Of course, there's a twist to all this. While 34 states (not including California) have amended eminent domain rules since the Kelo decision, the push for eminent domain changes in Connecticut, according to Condon, petered out within two weeks. - Paul Shigley