A new joint powers authority has acquired 66 acres of coastal wetlands at the mouth of the San Gabriel River in Long Beach and Seal Beach, and may acquire at least 100 more acres in the near future. The Los Cerritos wetlands may provide the scene for the last major coastal wetlands restoration project in Southern California. The project has a very long way to go, as its size, scope and expense has yet to be defined. Only last summer did a joint powers authority composed of the cities of Long Beach and Seal Beach, the state Coastal Conservancy, and the Rivers and Mountains Conservancy acquire the first 66-acre piece. More than 300 additional acres of wetlands and potential wetlands still remain, all of it in private ownership. "The only reason it hasn't been developed is because it has been an oil field," said Sam Schuchat, executive director of the Coastal Conservancy. Now, the property is both contaminated and wetlands— a set of circumstances that makes development nearly impossible. Scientists and environmentalists have documented the fact that Southern California has lost at least 95% of its coastal wetlands to urban development. Two of the highest-profile environmental battles of the last 30 years have involved preservation of coastal wetlands — at Playa Vista in Los Angeles and at Bolsa Chica in Huntington Beach (see CP&DR Local Watch , October 2003; Environment Watch , January 2002). Only in recent years have public agencies acquired the wetlands at issue, and full restoration is still many years away. The other significant Southern California coastal wetlands are at Ormand Beach in Oxnard, a few sites in San Diego County and at Los Cerritos, according to Schuchat. "It feels to me like we are at the end game for coastal wetlands acquisitions in Southern California," Schuchat said. Thus far, Los Cerritos has not become a high-profile environmental cause, probably due to the lack of the development pressure that raised the stakes in Playa Vista and Bolsa Chica. This may be changing at Los Cerritos, though, because a controversial big-box development is proposed adjacent to the wetlands. In October 2006, Long Beach approved a 155,000-square-foot commercial center to be anchored by a Home Depot on 16 acres located across a channel from the wetlands. City officials said the project would have no impact on the wetlands, but the project, which lies in the coastal zone, has since been appealed to the Coastal Commission. Project opponents argue that runoff from the big-box center and its 750-space parking lot would harm the wetlands. Coastal Commission staff members have raised the issue and, in a staff report last November, noted that wetlands have not been fully delineated. Opponents argue that the big-box site itself is part of the Los Cerritos marsh. In its appeal to the Coastal Commission, the University Park Estates Neighborhood Association contended that the entire area needs a master plan before the city contemplates new development. "The desire to maximize the acquisition and restoration of the Los Cerritos wetlands and to minimize deleterious impacts through minimally invasive use of adjacent areas remains the overwhelming popular desire of the adjacent stakeholders," the appeal states. Developer Thomas Dean acquired the property from AES Corporation, which has an electricity generating plant nearby. AES no longer needed the 16-acre site, which had served as a tank farm. Schuchat said there is no interest in acquiring the proposed big-box site for the wetlands project. "We don't have any reason to believe that development will impact what we want to do," he said. Long Beach Councilman Gary DeLong, chairman of the Los Cerritos Wetlands Authority, also dismissed concerns about the big-box development's impact. DeLong, who voted for the Home Depot project, said the project is consistent with the city's local coastal program, and he insisted there is very little threat to the wetlands posed by any new development. The city's focus is on redeveloping existing areas, not on growing into sensitive wetlands, he said. The Coastal Commission will likely decide on the appeal later this year. The wetlands restoration project is not dependent on the Coastal Commission's decision. Originally, the marsh covered about 1,500 acres. Roughly 400 acres remains either undeveloped or in a reclaimable brownfield state. "All of the area was wetlands historically. The San Gabriel River had a delta there," Schuchat explained. "It's got these remnant wetlands, and, because they are on either side of the San Gabriel River, they are imminently restorable." Because the wetlands lie on both sides of the river — the boundary between Long Beach and Seal Beach, and the line between Los Angeles and Orange counties — no one entity has been willing to tackle the restoration project. One year ago, the two cities and two conservancies formed the joint powers authority. The authority's goals are to provide flood protection and habitat restoration, and to improve water supply and quality. The wetlands authority is negotiating to acquire an additional 100 acres. The Bixby Ranch Company owns another 180 acres in Los Cerritos. The original acquisition of 66 acres was enabled by the Trust for Public Land, which purchased the marshland from the longtime owners. The authority then acquired the property for $10 million. The Coastal Conservancy provided $7 million, while Signal Hill Petroleum provided $3 million. Signal Hill will continue to extract oil from the site, but agreed to consolidate roads and well sites. Additional acquisitions could be funded with Proposition 84 bond money and possibly by the Port of Long Beach as environmental mitigation. Those same potential resources might also help pay for restoration work. Exactly what the wetlands authority will do with the site is undecided. Some conceptual planning has been done, and authority members are starting to work on more detailed plans. At this point, a complete study of habitat values has yet to be completed. Schuchat said a lengthy planning process with plenty of public input is in order. But, he warned, there can be a clash between habitat and public access. Indeed, DeLong emphasized that there must be more in the wetlands project than simply a lack of urban development. "As we do the restoration," he asked rhetorically, "how do we turn it into a community-serving asset — and not just something you can look at out your car window as you drive by?" Contacts: Sam Schuchat, Coastal Conservancy, (510) 286-1015. Councilman Gary DeLong, Long Beach, (562) 570-6300. Coastal Commission appeals and staff report: http://documents.coastal.ca.gov/reports/2006/11/Th14b-11-2006.pdf Los Cerritos Wetlands Authority: www.rmc.ca.gov/wetlands/about/about.html

In issuing its second California Environmental Quality Act ruling in seven months, the conservative-leaning California Supreme Court is emerging as one of CEQA's staunchest defenders. The latest decision — the rejection of an environmental impact report's water analysis for a large Sacramento-area housing project — is the court's first foray into such water studies, and the court appears to have set a high standard. There are no overt liberals among the seven state Supreme Court justices these days. Justice Carlos Moreno is the only high court jurist appointed by a Democratic governor, and he began his career on the bench as a Deukmejian appointee to the Los Angeles Municipal Court. Yet, said CEQA attorney James Moose, even among conservative judges, "the environmental values are just so accepted in this society." In a ruling that Moose and many others say is the state Supreme Court's most important CEQA decision in almost 20 years, the court stopped short of saying that a development project must have a guaranteed water source. However, the court made clear that anything less than a guarantee must be fully disclosed, and the alternatives scrutinized. "If the uncertainties inherent in long-term land use and water planning make it impossible to confidently identify the future water sources, an EIR may satisfy CEQA if it acknowledges the degree of uncertainty involved, discusses the reasonably foreseeable alternatives — including alternative water sources and the option of curtailing the development if sufficient water is not available for later phases — and discloses the significant foreseeable environmental effects of each alternative, as well as mitigation measures to minimize each adverse impact," Justice Kathryn Werdegar wrote for the court's six-judge majority. (For more details on the ruling in Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova , please see CP&DR Legal Digest story ). Michael Zischke, an attorney who filed an amicus brief supporting the city on behalf of the California State Association of Counties, said that the court is insisting on the "reasonable likelihood of water." That is a workable standard for developers and local governments, he said. Whether this standard is new is open to interpretation. Moose, who represented developer Angelo Tsakopoulos in the litigation, said the court handed down a "stringent new set of rules." "I don't think there are too many EIRs out there that would pass this test," Moose said. Attorney Stephan Volker, who represented project opponents, agreed with Moose that the decision is "far-reaching." But Volker said the state Supreme Court mostly combined appellate court case law with recent statutory changes. "This is the first time a court has put it all together in a comprehensive way," Volker said. Terry Rivasplata, a senior environmental planner for Jones & Stokes in Sacramento, portrayed the decision as new policy. "It raises the bar. It makes sure people are looking forward to the long-term impact," he said. Randy Kanouse, a lobbyist for the East Bay Municipal Utility District (MUD) and chief proponent of water planning legislation on which the court based part of its ruling, said the court correctly interpreted the statutes. The court is requiring the rigorous analysis required by the legislation, which merely sought to better connect land planning and water planning, he said. "They didn't stop the project. To those who claim you've got to have all of your water rights and all of the water in a constructed reservoir, that's wrong," Kanouse said. Both the law and the court require only that project proponents make progress toward getting real water to serve new development, he said. "My critics in the building community used to try to demonize the legislation as more than what it is." In fact, California Building Industry Association (CBIA) General Counsel Nick Cammarota characterized the ruling as "a fairly decent decision." The court upheld the analysis of the project's short-term water supply, and the court made clear that written verification of water agreements, public works project approvals and financing — and not necessarily readily available water — are adequate at the time of project approval, he said. The court's decision "does clarify what the rules are for the discussion of water supply in an EIR," Cammarota said. "They said you didn't absolutely have to have certainty with respect to your water supply." 20,000 Units The project that started the litigation decided by the court is the Sunrise-Douglas community plan, plus the Sunridge specific plan for about half of the community plan area. The community plan calls for roughly 20,000 housing units and 500 acres of retail and office development on 6,000 acres south of Highway 50, just east of the former Mather Air Force Base. Sacramento County approved the plans in 2002. Since then, Rancho Cordova incorporated as a city and has taken over plan implementation — as well as the legal defense. Opponents have many gripes about the project but centered their objection on water supplies and the potential impacts of heavy groundwater pumping. Despite the litigation, about 1,800 houses have been built. Issued in early February, the decision in Vineyard Area Citizens is the state Supreme Court's second recent California Environmental Quality Act ruling. In July 2006, the court ruled that California State University must mitigate off-site traffic and fire safety impacts from expansion of the CSU Monterey Bay campus (see CP&DR Legal Digest , September 2006 ). Several participants and commentators, though, see Vineyard Area Citizens as the high court's most important CEQA ruling since Laurel Heights Improvement Ass'n v. Regents of Univ. of Cal. , (1988) 47 Cal.3d 376, and Citizens of Goleta Valley v. Board of Supervisors , (1990) 52 Cal.3d 553. In Laurel Heights , the court held that an EIR must address reasonably foreseeable activities that result from a project, that a project may not be segmented into smaller parts during environmental review, and that an EIR must discuss project alternatives. In Goleta Valley , the court held that the number of alternatives discussed is subject to the "real of reason," but that alternative sites may have to be considered even for private developments. Since those landmark decisions, the state Supreme Court has heard few CEQA cases and has dealt primarily with finer points and process. Prior to last year's decision in City of Marina v. Board of Trustees , 39 Cal.4th 341, the state's high court had issued only two CEQA rulings in a decade. In Friends of Sierra Madre v. City of Sierra Madre , (2001) 25 Cal.4th 165, the court ruled that a city-sponsored ballot measure is subject to environmental review. And in Mountain Lion Foundation v. Fish & Game Comm'n , (1997) 16 Cal.4th 105, the court ruled that removing a species from the state's endangered species list is not exempt from environmental review. The Vineyard Area Citizens case, however, deals with substantive issues for an environmental study. And the issues involved have proven to be tricky, as trial and appellate courts have disapproved a number of EIRs because of inadequate analysis of water. "This court," said attorney Moose, "is pretty firm on CEQA compliance. I contrast it with the rulings coming off the court back in the early '90s, when it was a Deukmejian court." Two other CEQA cases are pending before the state Supreme Court. In Muzzy Ranch v. Solano County Airport Land Use Commission , No. S131484, the issue is whether an environmental review should have been completed before the commission adopted a compatibility plan that froze land use designations surrounding Travis Air Force Base. The second case, In re Bay-Delta Programmatic Environmental Impact Report Coordinated Proceedings , No. S138975, concerns the EIR for the Cal-Fed Bay Delta project, which an appellate court found inadequate, partly because the EIR did not contain a "no growth" alternative. How To Pass The Test The EIR produced for the Sunrise-Douglas community plan and Sunridge specific plan was detailed and rigorous, Moose said. "There was nothing more we could have done when we wrote the EIR seven years ago," he protested. "How could anyone have known?" Environmentalists, though, said the state Supreme Court decision is mostly a clarification of the rules. "It confirms that the appellate court cases have been correct," said attorney Susan Brandt-Hawley, who submitted an amicus brief in support of the project opponents. "Courts understand water supply and the dangers of planning without it." What the court said, according to winning attorney Volker, is that an EIR must apprise decision-makers and the public of possible water shortfalls and the potential environmental impacts of those shortfalls before a long-term development project is approved. Volker said the court is insisting on five things: • An inventory of existing approved and planned demands on water during buildout of a land use plan, such as a general plan. • An inventory of groundwater and surface water supplies expected to become available during the same timeframe. • An evaluation of whether the supplies will be sufficient. • If there is a discrepancy, an assessment of impacts resulting from not having water for all anticipated demands. • If there is adequate water, an evaluation of impacts of supplying the water. All of this likely falls under the heading of cumulative impacts, which have long vexed planners. In a dissenting opinion, Justice Marvin Baxter said that the court is demanding that a new analysis of long-term water supplies and impacts accompany every major development proposal. But the majority opinion said that an EIR for a project could tier off of studies of long-term water plans, such as an urban water management plan. The court's decision appears to raise the profile of urban water management plans, which most municipal water providers must prepare for 20-year periods and update every five years. "I think where the rubber meets the road is in the urban water management plan," said Volker, an Oakland-based environmental attorney. The urban water management plan is where supply and demand estimates need to correlate. If the plan shows that there is not enough water to supply expected growth, then building should be halted until new supplies are identified, he said. East Bay MUD's Kanouse said the decision bolsters the need for good urban water management plans. If a thorough water plan is in place, there is no reason to prepare an analysis from scratch when a large subdivision is proposed, he said. "I've always thought the urban water management plan was very important," added the CBIA's Cammarota. "It's the foundational document" and is the proper place for a discussion of water supply. The court's decision may force water districts to take such plans more seriously, said Rivasplata. Some urban water management plans are "smoke and mirrors," in that they mostly talk about searching for potential water sources and possible water delivery projects, he said. If developers rely on tenuous water plans, they may be inviting litigation, he said. Still, Moose pointed to the opinion itself, which suggests that a developer may be required to provide water impact mitigation. How could the developer ensure mitigation occurs, he asked, if the water is coming from the State Water Project or the federal Central Valley Project? Show Me The Water The court also addressed recent legislation that ties together water planning and land use planning. Senate Bill 901 from 1995 and SB 610 (both Costa) from 2001 amended the Water Code to require cities and counties to obtain supply assessments from water suppliers prior to approving large-scale development plans. Senate Bill 221 (Kuehl) from 2001 amended the Government Code to require that a subdivision of more than 500 units have "written verification" of a 20-year water supply before a city or county may approve a subdivision map. Citing a brief from the Association of California Water Agencies, the court said the legislation, taken together, demands "that ‘water supplies must be identified with more specificity at each step as land use planning and water supply planning move forward from general phases to specific phases.' The plans and estimates that Water Code § 10910 mandates for future water supplies at the time of any approval subject to CEQA must, under Government Code § 66473.7, be replaced by firm assurances at the subdivision map approval stage." One issue not directly addressed by the state Supreme Court — but of great interest to anyone involved in CEQA litigation — concerns the court's "standard of review." The state high court invited briefing from interested parties on the issue but ended up making no specific pronouncement. However, in its decision, the court utilized the "substantial evidence" test, and determined that there was a lack of substantial evidence behind Sacramento County's conclusion that adequate surface water diversions are likely to supply the project's long-term needs. Brandt-Hawley, whose amicus brief focused on the standard of review, praised the court's application of the substantial evidence test. She said a lead agency's findings and conclusions must be supported by substantial evidence, while courts may apply a more deferential standard to an agency's procedures and analysis. What puzzled some people, including Moose, Zischke and Cammarota, is that the project EIR appeared to contain substantial evidence that there was a reasonable likelihood water would be available for the long-term. The court did determine there was substantial evidence behind the county's findings regarding short-term water supply. What practitioners need to do, said Zischke, is come up with an analysis that closely matches the approved short-term supply study. As for the project itself, the sides will return to Sacramento County Superior Court to fight over the next steps. Since the project was approved, Rancho Cordova has completed a general plan and accompanying EIR, which provide a great deal of water analysis, Moose said. The long-term water supplies are essentially in hand, he said, in that the Sacramento River diversion project has been approved without legal challenge. The only thing left is actual construction, which is expected to take about three years. Plus, Moose said, additional planning documents regarding the Cosumnes River indicate that groundwater pumping will have no adverse impact on that river and protected fish. The question is whether the city will have to approve a new EIR for the housing project that combines all of these things, he said. But Volker instead sees "a train wreck scenario." "They have already violated the law by proceeding with development in the face of an unlawful approval," Volker said. "I think it means that the project approvals will be set aside and that the City of Rancho Cordova will have to prepare supplemental EIRs for the Sunrise-Douglas community plan and the Sunridge specific plan." Moreover, Volker is not persuaded that the recent Cosumnes River studies are adequate. The river is already dry during the late summer and early fall — the most critical times for migrating salmon, he said. The matter is likely to land in the Superior Court's hands within the next several weeks. Contacts: James Moose, Remy, Thomas, Moose & Manley, (916) 443-2745. Stephan Volker, attorney for Vineyard Area Citizens for Responsible Growth, (530) 496-0600. Susan Brandt-Hawley, attorney for Stanislaus Natural Heritage Project, (707) 938-3908. Michael Zischke, Cox, Castle & Nicholson, (415) 262-5109. Randy Kanouse, East Bay Municipal Utility District, (916) 443-6948. Nick Cammarota, California Building Industry Association, (916) 443-7933. Terry Rivasplata, Jones & Stokes, (916) 737-3000.

An appellate court has ruled that a property owner that sold its property to a third party after the Temple City Redevelopment Agency had commenced eminent domain proceedings is entitled to litigation expenses. A trial court judge had refused the request of Bayside Drive Limited Partnership for $43,000 in litigation expenses incurred while defending the city's condemnation lawsuit. The trial court said the property owner was not eligible for reimbursement because the eminent domain proceeding was dismissed due to Bayside's voluntary sale of the property to someone else. But a three-judge panel of the Second District Court of Appeal, Division One, ruled otherwise. The court cited Code of Civil Procedure § 1268.610, subdivision (a)(1), which states in part: " he court shall award the defendant his or her litigation expenses whenever … the proceeding is wholly or partly dismissed for any reason." "We find nothing ambiguous about the statute and conclude it must be given its plain meaning," Justice Miriam Vogel wrote for the court The Temple City Redevelopment Agency in late 2004 filed two eminent domain complaints to acquire property — one against Bayside and one against Pi Yun Hou Wang. The agency deposited $1.25 million as the probable amount of compensation for Bayside's property. While an October 2005 trial date was pending, Bayside sold its property to Wang for $2 million. The agency then dismissed both eminent domain actions because Bayside was no longer a property owner, and because Wang agreed to develop the property according to the city's redevelopment plan. Bayside then requested $43,000 in litigation expenses, including $35,000 for attorney fees. Bruce Mitchell, a temporary judge of the Los Angeles County Superior Court, initially disallowed $20,000 of the request. After additional briefing, Mitchell awarded Bayside $592 in "ordinary costs" but refused the remaining $22,500, which he said would be a windfall for the property owner. Bayside then turned to the appellate court for the $22,500. The Second District panel said the law supports Bayside's request. It does not matter why the eminent domain lawsuit was dropped, the court said in its short opinion, which repeatedly cites the phrase "for any reason" contained in the statute. " he purpose of the statute is plain — to compensate a defendant who has been put to the task of defending a condemnation action when, for whatever reason, the action is dismissed. That the defendant might fortuitously be able to extricate itself from an expensive condemnation action by selling the property to a willing buyer may or may not mean the defendant has thereby recouped the litigation expenses incurred up to the time of sale," Vogel wrote. The court rejected the city's argument, and the trail court's finding, that this reading of the law permits potential abuses. " e do not see a market developing for the purchase of properties in the midst of pending condemnation proceedings simply to permit the seller to recoup a portion of the fees and costs incurred in defending the property up to the time of the sale — and we therefore refuse to adopt the agency's ‘don't open the floodgates' argument where there is no chance of a flood," Vogel wrote. The court further ruled that Bayside is eligible for fees and costs — including attorney fees — incurred during the appeal. The Second District sent the case back to the Superior Court for a determination of reasonable appellate litigation expenses and a determination on whether any of the requested $22,500 should not be paid by the redevelopment agency. The Case: Temple City Redevelopment Agency v. Bayside Drive Limited Partnership , Nos. B198736, B189737, 07 C.D.O.S. 970, 2007 DJDAR 1207. Filed January 25, 2007. The Lawyers; For Temple City: Dean Dennis, Hill, Farrar & Burrill, (213) 620-0460. For Bayside: Christopher Sutton, (626) 683-2500.

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

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

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

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

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

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

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

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

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