One of the peculiarities of architects is their love of design method—and their love, equally great, of talking about it. This is understandable. Architects live and breathe design method, whereas the rest of us, happily walking through the Studio City Car Wash or the Taj Mahal (to name only two examples of the builder’s art) are blissfully innocent of the alternating blasts of inspiration and drudgery that architects go through to bring their brainchildren into built form. The problem is, almost nobody really gives a toss about design method, particularly when architects will hold up a scrawl on a napkin, and say, “This is my first conception of what would eventually become the Sierra Flats Cooking School and Cultural Center!” If the architect is a star, like Frank Gehry, he or she may actually exhibit or publish the drawing, as proudly as the first-time mother who shows everyone the photograph of her ultrasound. (“And there you can tell it’s a boy!”) Sometimes, however, design method is genuinely interesting, such as the five-year process to design and approve the Viewpoint School, a private academy for 1,200 students in the City of Calabasas. In the case of this school, located on a protected scenic corridor in an area of wooded hills and steep ravines, architect Jeff Kalban seems to have been looking for difficulty. “I designed it in reverse,” he said proudly. To understand what Kalban means by reverse, we need to review the typical process. An owner finds a piece of land and hires an architect, who prepares a design. That design is then vetted by environmental consultants, and then further vetted by city planning and building department staffs, and then further vetted by a design review committee, and perhaps vetted again by the fire department. At that point, the city council approves the project, and the owner builds what is left of it. In the case of the Viewpoint School, however, the architect and his school-client, on their own volition, spent nearly four years analyzing the site itself before committing themselves to a design. They consulted with an arborist and made a map of every tree on the site, including protected heritage oaks. They consulted with a biologist and made a different map, this time of wetlands, underground streams and “blue-water” streams. In the end, the architect compiled a forbiddingly stringent “constraints map” of all the sensitive places in the landscape to avoid. That constraints map largely dictated the location of buildings, and in some cases, their very shape. In a sense, allowing the constraints map to determine the positioning and even the contour of some buildings was a reverse in typical architectural thinking: Architects often view their buildings as the “positive” elements in the visual field, while the open space surrounding the building might be considered the “negative” space. In Kalban’s backwards design method, however, the landscape has been treated as the positive, and the buildings are treated as the leftovers. Kalban said he was stimulated by the process, if not always tickled by the successive discovery of new conditions to avoid. “Every time you turn around,” he says, “you get punched in the face again.” Even without considering environmental constraints, the topography of the site would have been a challenge. The Viewpoint site could be described as a long, green ribbon stretched along Old Topanga Road. Moving from the west to the east (from left to right on our graphics) the site drops 80 feet in elevation. Moving sideways across the skinny side of the ribbon, we encounter a ravine that drops 40 feet from the road. Not surprisingly, drainage is another element in the constraint map because the ravine is part of the regional flood-control system. The program was not simple: The architect had to create a number of buildings to be constructed in three phases over 12 years. Furthermore, he had to insert a perimeter road inside the boundaries of the property to provide access for emergency vehicles. “In some cases, we had to make decisions based on a couple of inches,” said Kalban. Given the constraints, the designs of the buildings, the first phase of which started construction on June 7, turned out handsomely. Particularly notable is the design of an arts building and auditorium, which minimizes excavation by closely following the profile of an existing hillside. Kalban himself is pleased with the design, even though he knows that several building facades, however carefully designed, will be virtually undetectable through the foliage. There are rewards for doing things the hard way. In this case, the painstaking attention to environmental issues helped move the project with relative ease through the approval process on the federal, state and local levels, as well as through the environmental review process. One person who was impressed by the reverse design method was Joyce Parker Bozylinski, a contract planner for the city who served as project manager. “They did much of the environmental mitigation work on their own, before the planners got involved,” she said. By the time that officials examined the design, she added, “there wasn’t much to do.” This exercise in restraint and environmental awareness is a tonic one at a time when people in Southern California are bracing for a one-third increase in population during the next quarter-century. Even in highly protected suburbs like Calabasas, the temptation to build on every subdivided piece of ground will be almost irresistible. We must make some disciplined decisions about where to build, and where not to build, and not let the pressures of the moment overwhelm us. The story of Viewpoint School is significant because it shows that construction can co-exist with a multi-dimensional environmental program. Despite the constraints, the buildings came out well, in part because Kalban is a resourceful designer, and in part because the buildings reflect so much information about the surrounding landscape. And we get all of this without having to look at scribbles on a napkin!

The California Supreme Court has accepted for review two land use cases involving local and regional restrictions on logging. The state high court also dismissed a case involving attorneys’ fees in a California Environmental Quality Act case. The state high court voted unanimously to review a Sixth District Court of Appeal ruling that local governments may not regulate the location of timber harvests. The court’s acceptance of the case was somewhat expected because the appellate court’s decision was directly at odds with a 1995 First District ruling. In the earlier case, the court ruled that local governments may regulate the location of timber operations, but not the method of logging. , 31 Cal.App.4th 418. In the recent case, the Sixth District determined that under the state Forest Practices Act, the phrase “conduct of timber operations,” covered both the location and manner of logging (see , April 2004). The case is , No. S123659. The other case accepted by the state high court involves a timber harvest plan in the privately owned portion of the Headwaters Forest. Pacific Lumber Company received approval for the plan from the California Department of Forestry and Fire Protection. But the state Water Resources Control Board then ordered Pacific Lumber to monitor water quality in the Elk River. Pacific Lumber argued that the state water board had no say in the matter, but the First District Court of Appeal ruled that state and regional water boards do have authority to enforce water quality protection measures against a timber company. Again, the state Supreme Court voted unanimously to review the case, which is , No S124464. The case that the state Supreme Court dismissed is , No. S112816. It involved responsibility for attorneys’ fees in a case where an appellate court ruled that a 2-2 decision by a Board of Supervisors was not adequate to certify an environmental impact report. The original case was , (2000) 84 Cal.App.4th 517 (see , January 2001). More recently, some of the same parties were involved in a case involving what belongs in the administrative record in a CEQA case. , 113 Cal.App.4th 1 (see , December 2003). But in late May, the six parties in the multi-pronged litigation agreed to a settlement that ended the court battles. At issue was development of 222 acres in Orange County’s Trabuco Canyon, near the Ramakrishna Monastery. Under the settlement, the developer agreed to reduce the number of homes from 299 to 266, permanently protect a 300-foot-wide wildlife corridor, and construct a berm that screens the 100-year-old monastery from the new houses.

A governor’s executive order intended to speed development of power plants superceded the California Environmental Quality Act (CEQA) and local measures for implementing CEQA, the First District Court of Appeal has ruled. The appellate court held that an executive order signed by then-Governor Gray Davis “effectively repealed” portions of CEQA and the CEQA Guidelines that were inconsistent with the order while the directive was in effect, from February 8 until December 31, 2001. The ruling came in a lawsuit filed by opponents of the Metcalf Energy Center in San Jose. They argued that the Bay Area Air Quality Management District and the California Energy Commission violated CEQA, the guidelines and implementation procedures. State law makes special provisions for the development of electricity-generating plants. Cities and counties have virtually no say in the siting process. Instead the Energy Commission makes siting decisions. Power plant siting is exempt from CEQA, but the Commission employs a CEQA-equivalent process. The state environmental law may come into play when the power plant developer seeks a federal Clean Air Act permit from the local air district. In 1999, Calpine Corporation applied to the Energy Commission for a certificate to build and operate a 600-megawatt, natural gas-fired power plant in south San Jose’s Coyote Valley. In October 2000, the Commission issued its final staff assessment (FSA) of the project, known as the Metcalf Energy Center. Faced with blackouts and an apparent lack of generating capacity, Davis signed a series of executive orders in February 2001 that streamlined the power plant development process (see , July 2001, March 2001). One of those orders, Executive Order No. D-26-01 required local, regional and state agencies making CEQA decisions on power plants to treat a Commission FSA just like an environmental impact report. Based on that order, the Bay Area air district relied on the FSA and issued a permit in May 2001. The City of Morgan Hill and three groups — Santa Teresa Citizens Action Group, Demand Clean Air and Californians for Renewable Energy — filed an appeal with the federal Environmental Appeals Board. The opponents contended the air district failed to comply with CEQA and its own regulations for implementing CEQA. The federal appeals board, however, concluded that it had no jurisdiction to rule on matters of state law and upheld the air district’s decision. At about the same time the federal appeals board issued its decision, the Energy Commission granted the certificate to construct and operate the Metcalf Energy Center. In September 2002, the opponents sued the Air Quality Management District. Calpine was named the real party in interest, and the Energy Commission also intervened in the litigation. Part of the lawsuit centered on timing. The air district issued its permit, based on the FSA, in May 2001. But the Energy Commission, which was the lead agency for environmental review purposes, did not decide on the project until September 2001. Under both the CEQA Guidelines and the air district’s own regulations, when the air district is not the lead agency, it may issue its permit only after the lead agency has provided final approval. San Francisco Superior Court Judge A. James Robertson II ruled that the Commission had conducted all of the CEQA review required during the time the executive order was in effect, and, besides, the air permit was a federal permit that did not require CEQA review. Project opponents appealed, and a unanimous three-judge panel of the First District, Division Four, upheld the lower court. The appellate panel ruled that the CEQA Guidelines and air district regulations on which the opponents relied were not in effect because of the executive order. On appeal, the opponents challenged the lower court’s interpretation of the executive order. They argued that even if the air district used the FSA as an EIR, the district was still obliged under the CEQA Guidelines to wait until the Energy Commission made a decision. What mattered was the Commission’s certificate, not the prior issuance of the FSA, opponents contended. The appellate court rejected the argument. “To adopt the interpretation of the executive order would be absurd, rendering the order a virtual nullity,” Justice Timothy Reardon wrote for the court. “The purpose of this order was to alleviate a growing electricity shortage that threatened California’s residents and commercial users of energy. The order was intended to expedite the processing of applications for power plants by ensuring that the necessary environmental review of such proposals would be implemented more quickly. It designated the FSA, not the later-issued Commission certificate, as the functional equivalent of an EIR for power plant proposal applications for all state and regional agencies.” “In this matter,” Reardon continued, “the Commission’s October 2000 FSA conducted as part of its certification process constituted the environmental document needed before the district could issue its May 2001 PSD permit. The Commission’s September 2001 certificate — incorporating the earlier assessment of its staff — was the only CEQA approval that the project required.” The court essentially declined to rule on allegations that the district had violated a delegation agreement with the federal Environmental Protection Agency that allowed the district to issue federal permits. The court noted that federal authorities had decided that CEQA compliance was a matter of state law. The decision in this case was the latest in a string of losses for opponents of the project, which is under construction. The opponents challenged the Commission’s approval of the project in the state Supreme Court — the only venue for contesting Commission decisions — but the state high court summarily dismissed the claim. The opponents then claimed in a different lawsuit that the state Supreme Court’s summary dismissal was a violation of their constitutional rights. But the Third District Court of Appeal rejected that argument in , (2003) 105 Cal.App.4th 1441(see , March 2003). The Case: , No. A102518, 04 C.D.O.S. 4258, 2004 DJDAR 5835. Filed May 14, 2004. The Lawyers: For Morgan Hill: Stephen Volker, (510) 496-0600. For the air district: Brian Bunger, (415) 749-4797. For the California Energy Commission: William Chamberlain, (415) 654-3951. For Calpine: Jeffrey Harris, Ellison, Schneider & Harris, (916) 447-2166.

After nearly five years of work and $5 million of expense, Monterey County’s general plan revision effort has taken a drastic turn. Monterey County supervisors have installed a new team to take charge of the revision and have put on ice a draft general plan that had been endorsed by the Planning Commission. The Board of Supervisors’ decision, which came on a 3-2 vote, cheered development interests, landowners, farmers, the tourism industry, labor unions and some affordable housing advocates, all of whom disliked the draft general plan. The decision angered environmentalists, slow-growth activists and different affordable housing advocates, who endorsed many provisions in the draft plan. No matter which side is “winning” at this point, it appears that Monterey County — long a scene for protracted development battles — is more polarized than ever over growth. One pro-growth group has threatened to sue the county, while slow-growth forces are feeling betrayed and discussing a ballot measure of some sort. “It’s like a couple of angry dogs circling around, snarling, waiting to see who’s going to lunge first,” said Bob Perkins, executive director of the Monterey County Farm Bureau and a draft plan opponent. Adding to the uncertainty is a November election that could tip the balance of power on the Board of Supervisors. Supervisor Edith Johnson, who cast the swing vote for scrapping the draft plan in late May, is not seeking re-election. Running for the seat are Seaside Mayor Jerry Smith, who opposed the draft plan, and Jane Parker, a Planned Parenthood executive who is seen as the slow-growth candidate. From the outset, Monterey County’s general plan process was unique. When the county got started, the planning department was short-staffed and in a state of flux. So County Administrative Officer Sally Reed created a new division in her office with Chief Assistant CAO James Colangelo in charge of 10 county employees and about 15 consultants. Working through about a dozen citizen advisory committees, the general plan crew conducted more than 200 public meetings. As the plan took shape based on “guiding objectives” adopted by county supervisors (see sidebar below), growth advocates began raising concerns. A 2001 update was rejected, and an attempt in 2003 to resolve issues though a 25-member “refinement committee” stumbled. Eventually, a document known as GPU-3 was released early this year. After seven long meetings, the Planning Commission endorsed an amended version of GPU-3 and a draft environmental impact report in late April. The draft plan is a marked change from the existing general plan, which was adopted in 1982. That plan is fairly brief and relies heavily on area plans for more detailed policies and implementation measures. The draft plan, which is about 1,500 pages long, is organized quite differently. Significantly, the plan directs unincorporated area growth to seven “community areas,” which would have housing densities ranging from 7 to 30 units per acre. The plan would virtually prohibit new subdivisions outside those community areas. The draft plan emphasizes the need to get infrastructure and public services in place, and calls on new development and existing residents of poorly served areas to foot the bill. While dramatically reducing the land available for development under the 1982 plan, planners said the document still provides three times as much land as needed to meeting the unincorporated county’s 20-year housing needs. “The major thrust of this plan is to manage growth by preserving a clear distinction between urban and rural areas. This means channeling new growth into planned urban areas and preserving rural areas for agriculture and other resources-based industries and for natural resource protection,” the document states in a chapter called “Plan Concept.” To ensure the goals are met, “it will be critical to time the release of new growth areas based on the availability of water, roads, sewer and other services and to phase development from the community centers outward.” Almost everyone found something to hate about the draft plan. That hatred came to a head in the Board of Supervisors chambers. The plan arrived in supervisors’ hands in mid-May, with the schedule calling for board adoption in June. “That’s when I told the board, ‘Time out,’” said County Counsel Charles McKee. His office and county departments involved with land use had never received the opportunity to review the entire draft plan, McKee said. Feeling the heat from powerful interest groups, the board not only granted McKee’s time out, the board put him in charge of the revision process. Supervisor Fernando Armenta, who voted in the majority, declined to characterize the decision as a change of direction, but, rather, as a way of ensuring that everyone gets heard. “To me, it’s not stopping the process. The thing was never complete to begin with,” Armenta said. “I never made any promises to anybody about any deadlines.” But Marit Evans, a former, 13-year member of the county Planning Commission, said supervisors deviated from the process because they did not want to make difficult decisions. “Three of them gave in to the development interests,” Evans said. Discarding the plan was “totally unjustified,” added Gary Patton, executive director of LandWatch Monterey County and a former county supervisor. “When it became clear that the board was going to have to vote on a document that the business and development community didn’t like — and, therefore, either have to adopt a plan that these folks opposed, or vote to modify the Planning Commission recommendation to accommodate the development side — the board decided to avoid, at least for the time, the need to make a tough choice,” Patton said. “I think the supervisors have taken the only course they could have taken,” responded the Farm Bureau’s Perkins, a Republican candidate for Assembly. The draft plan is internally inconsistent, with long “feel-good discussions” at the start of each element that do not necessarily match the policies, Perkins contended. “They simply could not implement the plan they had in front of them.” The effort was supposed to produce an update of the 1982 plan, not an entirely new plan with a different format, said Brian Finegan, a Salinas attorney who represents landowners and agricultural interests. The draft plan “may have been cutting-edge, but it did not reflect the diversity of this county, a broad cross-section of the county.” County Planning and Building Inspection Division Director Scott Hennessy, who is now working closely with McKee on the plan, agreed that the original update grew into something else. “The power structure of the community really was not prepared to accept a state-of-the-art general plan. They wanted an update of the ’82 plan,” Hennessy said. And that, apparently, is what they will get. With the board’s blessing, McKee and Hennessy intend to craft a general plan based largely on the 1982 edition. They say they will also use the guiding objectives, portions of the draft general plan and community input in piecing together a new plan, he said. “We’re going to see if we can use an area plan approach,” McKee said. “We’ll probably do a lot of informal meetings with stakeholder groups. And then if we can’t get some good consensus in different areas, we will ask the board to be tiebreaker or to appoint a citizens commission.” Patton and his allies argue that McKee’s process is a back-room approach to what should be a public process. Although McKee and supervisors said they would like to see everyone stay involved, some people are unsure how to proceed. “If join them, we’re co-opted,” said Evans. “If we don’t join them, we’re ‘detractors.’ The county counsel has already called us that.” Whether the guiding objectives survive intact could be as important symbolically as practically. Finegan and Perkins offered a tepid endorsement of the objectives, while Armenta said the objectives should not limit the plan. Patton and other controlled-growth advocates endorse the objectives but have long wondered whether the county would truly abide by them. Hennessy said he hopes to release a new plan in about one year. Monterey County General Plan Guiding Objectives 1. Preserve the unique character of areas throughout Monterey County as represented by the different area land use plans. 2. Identify land that is adequate and appropriate for the residential, commercial and industrial development needs of Monterey County during the next 20 years, taking into account land located within the cities, existing legal lots of record, and resource and infrastructure constraints. 3. Preserve a distinction between urban and rural areas. Channel new growth to areas already committed to an urban level of development (e.g. cities, areas directly adjacent to cities, and densely developed unincorporated communities). Preserve rural areas for resource-based industries (e.g. farming, livestock grazing, mining), natural resources protection, and open space recreation uses. 4. Strongly encourage new commercial, industrial and residential development to provide actual, new, permanently affordable living quarters, including housing for people with low, very low and moderate incomes who live and/or are employed in Monterey County. Promote density, creative and innovative design concepts, and employer-produced housing which will increase affordable housing opportunities convenient to the workplace. Promote a healthy job and housing balance in all areas. 5. Promote the development of walkable communities that meet the daily needs of their residents, offer a high quality of life for their residents, and reduce the need for automobile trips. 6. Promote, preserve and support agriculture and the industries that serve it. Promote industries that preserve and support environmental quality or serve the local needs of our communities. 7. Minimize development of commercially viable agricultural land. Ensure that recognized needs for growth are met by infill and contiguous, compact development. 8. Provide adequate infrastructure and public services for existing residents and businesses. Ensure that infrastructure and public services are available, fully funded, and constructed concurrently with new development. Ensure that new development neither increases the infrastructure and public service cost for existing residents and businesses nor reduces their quality of service by a significant amount. 9. Provide long-term protection of identified resource-rich and critical habitat areas. 10. Protect the visual integrity of ridgelines, designated scenic corridors and other identified sensitive visual resources throughout Monterey County. 11. Seek to provide an adequate and sustainable water supply while protecting the county’s watersheds and marine environment, including surface water, groundwater and aquifer recharge areas. 12. Provide a clear statement of county land use values and policies to provide clarity in the county’s permit processing system and to simplify review of projects that are consistent with the general plan. Contacts: Charles McKee, Monterey County counsel, (831) 755-5045. Scott Hennessy, Monterey County Planning and Building Inspection Division, (831) 755-5025. Supervisor Fernando Armenta, (831) 755-5011. Bob Perkins, Monterey County Farm Bureau, (831) 751-3100. Gary Patton, LandWatch Monterey County, (831) 422-9390. General plan website: www.co.monterey.ca.us/gpu

Two bills that give the state the ability to control local tax increment financing advanced at the state Capitol during June. If the bills become law, state officials would have more control than ever before over local projects that rely on tax increment financing. One bill extends the life of a redevelopment project area around the Los Angeles Memorial Coliseum by 12 years; the other bill permits cities within a five-county region of the Bay Area and San Joaquin Valley to create infrastructure financing districts. Both bills require local officials to get the approval of the state Infrastructure Bank (I-Bank) for projects that involve tax increment financing. The redevelopment bill — AB 2805 by Assemblyman Mark Ridley-Thomas (D-Los Angeles) — allows the City of Los Angeles to extend the life of the 409-acre Hoover project area around the Coliseum and the University of Southern California for up to 12 years without having to prove that blight still exists. This would be an exception to 2001 legislation, which allows a redevelopment agency to extend a project area for up to 10 years, but only if the agency can prove blight still exists. State Senate Local Government Committee Chairman Tom Torlakson (D-Martinez), who authored the 2001 legislation, voted for AB 2805 in committee, but he extracted a number of concessions, foremost, the requirement that the I-Bank (composed of the state treasurer, the director of the Department of Finance, and the secretary of the Business, Transportation and Housing Agency) approve any tax-increment financing plan within the project area. The bill also requires the L.A. Community Redevelopment Agency to set aside 30% of program income for low-, very low- and extremely low-income housing development, and mandates that the agency meet affordable housing production quotas. The desire to bring a professional football team to Los Angeles is driving AB 2805. The city wants to use redevelopment tools, including tax increment financing for infrastructure, to help lure a team. The city also covets the tax increment that could be generated by NFL-driven private investment in and around the Coliseum. Ridley-Thomas estimated that the state itself, which owns the Coliseum, could receive up to $87 million over the 25-year life of a football team’s lease of the facility. The bill passed the Assembly and Senate Local Government Committee on partisan votes. The bill could hit resistance on the Senate floor from San Diego lawmakers of both parties because the Chargers are one of two teams (along with the Minnesota Vikings) most likely to relocate to Los Angeles. The other bill setting up unprecedented I-Bank oversight is AB 723 (Matthews). The bill permits cities and counties within the Inter-Regional Partnership project area to create infrastructure financing districts (IFDs) within designated “jobs-housing opportunity zones.” An IFD can divert property tax increment revenue for up to 25 years to pay for public works and replacement housing. Again, the bill does not require a finding of blight, but it does urge that an IFD assist development of land that is vacant and “suitable for urban use.” While the Matthews bill passed a Senate committee in June, an unrelated IFD bill faced an uncertain future. Assembly Bill 2212 (Runner) would permit San Bernardino County to create an IFD for 100,000 acres of the Mojave Desert northwest of Barstow. The county is encouraging dairies to relocate from the Chino dairy preserve to the high desert. However, the dairies need only a few thousand acres. Why the IFD would cover 100,000 acres was unclear. The Assembly passed AB 2212 without dissent, but the bill appeared to stall in the Senate. An important housing bill died in June. Senate Bill 744 (Dunn) proposed to create a state panel to hear appeals of local decisions regarding proposed housing developments. The bill narrowly passed the Senate in January. But Assembly Local Government Committee Chairman Simon Salinas (D-Salinas) made clear his opposition to creation of a state appeals board and he blocked the bill. Instead, Salinas and Dunn may work together on strengthening anti-NIMBY law. A bill that sought to expand the authority of the Delta Protection Commission (see , June 2004) passed the Assembly only after being watered down. Assembly Bill 2476 (Wolk) still calls for the Commission to update the Sacramento-San Joaquin Delta resources management plan with an eye toward development in the “secondary zone,” and the bill adds five new seats to the Commission. But gone are mandatory development mitigation measures, requirements that local governments comply with the Commission’s plan and expanded development appeals authority for the Commission. Two bills that seek to limit the authority of Local Agency Formation Commissions appeared headed in different directions. Assembly Bill 2306 would prohibit a LAFCO from requiring a city that wants to annex territory to also annex unincorporated islands that are not contiguous to the proposed city expansion. Assembly Keith Richman (R-Northridge) introduced the measure after the Ventura County LAFCO said it would approve the City of Simi Valley’s annexation of 1,500 acres only if the city also commenced annexation proceedings for nine small islands of unincorporated land. The bill is supported by the League of California Cities, developers and real estate interests, but is opposed by the California State Association of Counties and the state LAFCOs association. The bill passed the Assembly without dissent and is headed for the Senate floor. Meanwhile, a bill that sought to prohibit the Contra Costa County LAFCO from approving boundary changes that conflict with a voter-approved urban limit line died. Assembly Bill 2634 died in Torlakson’s committee, in part because of a long-running political feud between Torlakson and the bill’s author, Assemblyman Joe Canciamilla (D-Pittsburg). A bill that stirred enormous conflict last year, SB 18 (Burton), appeared headed toward approval this year, but in greatly amended form. The bill addresses protection of Indian cultural sites. Last year’s version, which failed on the Assembly floor, appeared to give tribes virtual veto power over development anywhere near a cultural site. The rewritten version of SB 18 requires cities and counties to consult with tribes early in the processing of a plan or development proposal, and permits tribes to hold conservation easements. The amendments have neutralized the developers and local governments that fought SB 18 vigorously last year.

There is little question that, in most parts of California today, the idea of “smart growth” is winning the political battle. The land-rich areas of the Inland Empire and the Central Valley remain suburban holdouts, but in most of the ret of the state, the core ideas – higher-density housing, mixed-use development, and even improved transit service – are gaining political acceptance. Now comes the second battle – the battle for investors. And it’s really a battle to get private investors interested in an underserved market: moderate-income families. Increasingly, conventional real estate investment – for housing and for retailing – is targeting only the top one-third or so of the market wherever that market may be. Private investors have long been interested in building high-density housing or high-end retail in West Los Angeles or coastal Orange County. What is beginning to change is that some investors are digging deeper into the market to go after the middle-income folks. In a manner reminiscent of the socially responsible investment funds that were all the rage a few years ago, some investment firms have begun using the “smart growth” moniker as a marketing tool to investors. One example is the Southern California Smart Growth Fund, a real estate investment entity with $100 million in equity that was created by Pacific Coast Capital Partners, a major equity investment firm based in the Los Angeles area. Though Pacific Coast Capital has done a wide range of projects, including residential developments, the two projects the Smart Growth Fund is currently promoting are commercial – reuse of a former NASA site in Downey and a renovated shopping center in South L.A. These projects are familiar in a certain way because they are redevelopment-type projects – taking old industrial and retail land and recycling it for business-related developments. The bigger challenge is the residential part of smart growth. Traditional public subsidies aid people making less than 120% of median income. But 200% to 250% of median income is typically required today to buy a market-rate house in California. So, in L.A. County, for example, a family of four with an income between approximately $50,000 and $110,000 falls into the gap, making too much money for publicly subsidized projects but not enough for market rate housing. This income range is where many “regular folks” live. But most residential real estate investment goes to market rate projects above that range, while smaller amounts of capital flow to “affordable” projects below that range because of subsidies and other government incentives. There is nothing inherently “smart growth” about the housing preferences of middle-class families. Indeed, the experience of the last century has been quite the opposite. But the pro-forma realities in today’s California real estate market are pushing the middle-class toward higher densities – and, whether they like it or not, toward smart growth-style development. Simply put, there is no way an $80,000-a-year family can hope to afford a single-family home in most California communities, especially near coastal job centers. Townhomes, condominiums, and more innovative products – such as the four-story buildings with two-story flats in West L.A.’s Playa Vista – are becoming the norm. There are really two components to the middle-income housing investment question — private and public. The question about private investors is simple: How do you get institutional investors interested in middle-income real estate development projects? As Jay Stark of the Phoenix Group – a major middle-income developer in L.A. – said recently in an interview with The Planning Report: “Companies doing this type of housing, like The Lee Group, the Olsen Company and others, have not traditionally used a lot of institutional capital. They’ve been using it on a one-off basis but primarily have relied on a lot of ‘friends and family money.’” In other words, even today, middle-income housing that helps create smart growth neighborhoods is mom-and-pop stuff. The big institutional money still goes elsewhere. On the public side, the question again is simple. Public subsidies and incentives stop at 120% of median income – about $50,000. If public policy is going to close the gap, what policies should be used? The more complex question is whether there is tolerance – even in today’s world – for public subsidies and incentives that help people who make $70,000, $80,000, or maybe $100,000 per year. There are very few precedents in American history for the middle-income housing problem in California today. One of them, however, is in New York City, where land constraints and high home prices drove both public agencies and private corporations toward high-density development and subsidized middle-income housing decades ago. More than a half-century ago, when single-family home ownership for middle-class families was by no means assured, Metropolitan Life Insurance Company undertook the creation of several large and well-designed apartment projects as rental housing for the middle class. Met Life not only wanted a long-term investment, it also wanted to create healthier living circumstances for their policyholders. Eventually, Met Life exported the idea to other cities, including San Francisco and Los Angeles, where the company built what is now known as Park La Brea in Los Angeles. Today, with real estate prices sky-high in L.A., Park La Brea has been reborn as an attractive and even hip in-town location for middle-income renters. The postwar suburban housing boom in the ‘40s and ‘50s blunted the need for middle-income rental housing to some extent. Even so, New York City and New York State began experimenting at that time with middle-income housing programs that still exist. The primary purpose of these programs was anti-suburban – to stem the flow of middle-income families from New York City to the suburbs by creating attractive, but high-density, housing opportunities inside city limits. The most durable of these programs was the “Mitchell-Lama” program, which led to the construction of more than 100,000 rental and co-op units by private developers. The incentives New York State provided to these developers came from a menu familiar to anyone knowledgeable about today’s affordable housing programs: Low-interest mortgages and tax incentives in exchange for a promise of limited equity return. The two major differences between Mitchell-Lama and California’s affordable housing efforts are one-stop shopping and a focus on what we now call “workforce housing.” The first may be preferable to today’s six or seven layers of financing required for affordable projects, which bump up transaction costs. The second is simply a reflection of the fact that New York was seeking to stem the flow of teachers, police officers, firefighters and others to the suburbs – a goal that resonates in California today. The public and private efforts to secure workforce housing in New York during the postwar era are not without problems. Park La Brea-type projects, however attractive, were based on New York’s grim reality that most middle-income families could never afford to buy their homes. This state of affairs is becoming increasingly true in California, though we are not quite willing to accept it as a reality. Also, programs such as Mitchell-Lama do operate outside the marketplace with a lot of governmental control. Forty-nine years after the Mitchell-Lama law was passed, each project maintains a state-supervised waiting list of prospective residents, and New York State produces a thick report on the performance of each project every year. Still, if smart growth is to succeed in California, middle-income housing is the key. And as the average home price drifts toward $500,000, lessons from elsewhere may become increasingly relevant in keeping the American Dream alive — in a smart growth context — here in the Golden State.

According to the state Department of Finance, California had 532,000 more residents at the end of 2003 than it had at the beginning. Ho hum. This has been going on for quite a while in California – and not just for a decade or two or three. Ever since the Great Depression gave way to World War II 63 years ago, California has been adding about a half-million people a year to its population. During that time, the state’s population has grown from around 6 million people to going on 40 million. And there is no reason to expect that to change anytime soon. What is changing is where and how people live. In some parts of the state, we are seeing a return to old suburban patterns. Yet in other ways, we are seeing a continuing transformation of California into an urban society. As usual, here in California we are doing everything at once. Perhaps the most startling change is what’s going on in the Bay Area. Population growth in the Bay Area has all but stopped, at least for the moment. The nine-county bay region actually saw a small decline in population last year, and since 2000 population growth in the region has been less than half the statewide average (3.3% as opposed to 6.7%). There’s a little suburban-style growth in places like Contra Costa and Sonoma counties, but elsewhere around the bay population is decreasing. Meanwhile, the population in Southern California is increasing a great deal, especially in suburban areas like Riverside County. Los Angeles County continues to be a population machine, adding almost 600,000 people since the 2000 Census, but Los Angeles County is growing at about the state average. The real story is in Riverside, which has added almost 230,000 people since the census, an increase of 15%. Riverside County has now passed Santa Clara County as the fifth most populous county in the state. Soon it will pass San Bernardino to become number four, behind L.A., Orange, and San Diego counties. The most interesting part of the population story in Southern California is the contrast between Riverside and Orange. In the ‘90s, Orange County grew faster than the statewide average and, at least in raw numbers, added more people than Riverside. But no more. Since 2000, Orange County has added 170,000 persons (a 6% increase) -- but that pales in comparison to Riverside County’s growth. So, what’s happening? Have we entered a re-suburban era? Are young families chasing new single-family houses deep into the desert and the Central Valley in order to get a piece of the American dream? Well, yes and no. According to the state Department of Finance estimates, the overwhelming majority of housing units that have been built in California since 2000 — 74% — are single-family homes. That’s about the same as during the 1990s. The difference in recent years is where these homes are being built, and what the other 26% consists of. Single-family homes are being built in large numbers in Riverside County and the Inland Empire, and at a more frantic pace than we saw during the 1990s. In the coastal areas, where average prices hover around the half-million-dollar mark, the modest trend of the ‘90s towards townhouses has been replaced with a movement toward multi-family condos and apartment buildings. First to the single-family home construction. There is no question that housing production is shifting back to the inland areas in a way that was not true during the ‘90s. The urban coastal areas – San Diego, Orange, and L.A. counties and the Bay Area combined – have accounted for only 44% of the state’s total housing production since 2000. Meanwhile, in the blazing Riverside County market, single-family detached homes have accounted for almost 90% of housing starts in the last four years – up from 81% during the ‘90s. In fact, from 2000 through 2003, Riverside County produced 66,000 single-family homes – twice as many as any other county. In metro Sacramento, the single-family detached figure for the last four years is 85%. In San Joaquin County, the leading “Bay Area spillover” county, the single-family detached figure from 2000 through 2003 was almost 98%. In the coastal areas, things look very different. Townhouses have dropped from 12% of new housing units to only 1%. But multi-family units – apartments and condo projects with five units or more – have gone in the opposite direction, increasing from 7% of all housing production to 22%. In some coastal counties, multi-family construction now exceeds single-family construction, and it comes close elsewhere. From 2000 through 2003, multi-family construction exceeded single-family construction in four urban coastal counties – San Francisco, Santa Clara, San Mateo, and Los Angeles – and came close in Alameda County. In L.A. County, multifamily projects have increased from 10% of new housing during the ‘90s to 50% during the ‘00s. In Santa Clara County, the multi-family figure rose from 26% to 62% of all new housing production. In the other two big urban coastal counties – Orange and San Diego – single-family construction still outstripped multi-family construction, but the numbers are very different than they were in the ‘90s. In Orange County, the multi-family figure rose from 13% to 32%; in San Diego, it went from 11% to 30%. As we have seen in the past, California is bifurcated in many ways – not just north-south, but east-west as well. The new Department of Finance figures suggest that both of these splits are alive and well. In the north-versus-south, the Bay Area has stopped growing, while coastal Southern California is still adding lots of people. But this north-south split may not be as important as the east-west split because the east-west split is not about how many people there are, but about how they live. In interior California, people build and buy single-family homes in overwhelming numbers. But in the coastal areas, residential trends are changing. And the change is not from single-family homes to townhomes – a modest shift. The adjustment is from single-family homes to condos and apartments – a big shift, and one that is sure to alter the politics of growth in California in the years ahead.

In 1999, the landowners of the Broadview Water District (BWD) in the grasslands of western Fresno County collectively decided that it might be in their best interest to quit farming their land. Five years later, they appear on the verge of closing a deal to sell their land and water supply in an unprecedented deal. The landowners of the BWD are in escrow with the Pajaro Valley Water Management Agency (PVWMA) to sell virtually all the land (9,100 acres) and all the water supply (27,000 acre feet per year) for $25 million. The deal is set to close by July 24. The PVWMA plans to transport the water via pipeline to the coast, where the water will help balance the effects of a regional groundwater overdraft that is causing saltwater intrusion and endangering crops. According to Charles McNiesh, PVWMA general manager, once the deal goes through, the BWD land may be sold back to private interests, minus the water supply. A California Environmental Quality Act review is set to be completed next month. In order to reassign the BWD water service contract, the U.S. Bureau of Reclamation must approve the plans through the National Environmental Policy Act process. McNiesh is optimistic, saying that both processes appear to be going smoothly. Although the BWD land is still viable farmland, many longstanding issues would need to be addressed for agriculture to have a future, said Joe McGahan of Summers Engineering, the drainage coordinator for the Grassland Basin Drainers. Due to irrigation upslope as well as irrigation within the BWD, and the presence of a layer of impermeable clay underlying the region, the water table is rising and the salinity level in the root zone could soon become toxic. Continued farming would require substantial investment in drainage and water treatment (see , March 2000). To complicate matters, the region’s high levels of selenium, a potentially toxic element that ends up in the farm runoff, would necessitate treatment to meet environmental regulations. Factoring in additional uncertainty in the district’s water supply from the Central Valley Project makes these improvements particularly risky and expensive for the BWD. Since the 1990s the BWD has repeatedly been faced with investors looking to buy individual properties as a means of acquiring a transportable water supply. After many years, the agency, distracted from its goal of managing the water contract, attempted to resolve the matter by issuing a single request for proposals from prospective buyers. Interestingly, in matters of land transactions, the BWD holds no legal powers. Although the BWD is a “landowner voting district,” with 30 landowners selecting a board of five, the district cannot bind its landowners to sell their land. Instead, the district agreed to act as facilitator for the deal at the landowners’ request, a job for which it was well suited, said BWD General Counsel Gary Sawyers. The County of Fresno opposes the water transfer and its corresponding loss of agricultural production, jobs, and revenue. The county worries that precedents set now may have implications for years to come. The county has threatened to file suit to block the project. There is also some dissent among the farmers and residents of the Pajaro Valley, said Lisa Dobbins of the community group Action Pajaro Valley. Funding for the purchase and the pipeline was narrowly approved through a 2002 ballot measure, resulting in an increase in per-acre augmentation fees paid by farmers. As a result, the cost will be shared equally by coastal farmers and inland farmers, while only coastal farmers must deal directly with saltwater intrusion. Many people worry that small farmers may be less able to shoulder the additional costs, while other people are concerned that the water will be used to support urban growth rather than agriculture. The PVWMA charter places agricultural needs first. To offset some of the project’s expense, the PVWMA has signed agreements with the Santa Clara Valley Water District (SCVWD) and the Westlands Water District. Westlands will be sold half of the water supply, while the other half is to be divided between PVWMA and SCVWD. The Santa Clara Valley district will use water only during dry years, and will supply water to PVWMA in wet years, ensuring that PVWMA has enough water on average to meet its basin management plan’s recommendations for stemming saltwater intrusion. Meanwhile, Fresno county struggles with keeping the Westside as a profitable agricultural area. Besides water transfers, the water supply is uncertain and there have been suggestions of retiring much of this land for habitat restoration or urban growth (see , February 2002). Still, many farmers have vowed to stay in the game, said McGahan, the region’s drainage coordinator. Whether or not they will get government assistance with drainage, an issue with decades of legal history, remains to be seen. Contacts: Charles McNiesh, Pajaro Valley Water Management Agency, (831) 722-9292. Lisa Dobbins, Action Pajaro Valley, (831) 786-8536. Joe McGahan, Summers Engineering, (559) 582-9237. Gary Sawyers, Broadview Water District counsel, (559) 438-5656.

The City of San Diego could legally determine that a road was no longer necessary and close the road, even though thousands of motorists would drive on the road if it were open, the Fourth District Court of Appeal has ruled. In an admittedly “highly deferential” decision, the court found that the city had made the findings required by the Streets & Highways Code and Vehicle Code for the closure of the road. “[T[he fact that a substantial portion of the public would like to have a road reopened or would use the road does not mean the legislature is legally precluded from finding the road is not necessary because another road provides equivalent benefits,” the court ruled. In late 1995, Caltrans closed a one-mile segment of Sorrento Valley Road, which runs parallel to and west of Interstate 5 in the northwest corner of San Diego. Caltrans closed the road to permit construction of Highway 56 nearby. When Highway 56 was completed two years later, people asked the city to reopen Sorrento Valley Road. When the city failed to act, a group called Citizens for Improved Sorrento Access (CISA) sued the city. While the lawsuit was pending, the city prepared plans to reopen the road. However, the Coastal Commission determined that the city would need a coastal development permit, and the city concluded an Environmental Impact Report was required because of the road’s proximity to the sensitive Los Penasquitos Lagoon. The city prepared an EIR that identified numerous significant impacts to water, drainage, biological resources, noise levels and landform. While the impacts were mitigable, they would “irreversibly change the character of the environment,” the EIR found. The City Council declined to certify the EIR. Instead, the council directed its staff to study redeveloping the road for only pedestrian and bicycle access. A new EIR found that the proposed pedestrian and bicycle trail would result in fewer environmental impacts. In February 2003, the City Council certified the new EIR, approved closing Sorrento Valley Road to motorized vehicles, and amended local land use plans to delete the road from the traffic circulation system. The same group, CISA, filed a new lawsuit. San Diego County Superior Court judges ruled for the city in both suits. The group appealed, and a unanimous three-judge panel of the Fourth District, Division One, upheld the lower court. CISA made numerous arguments against the closure. The group pointed to the fact that an average of 14,000 cars used Sorrento Valley Road every day before it was closed, and to estimates that 16,000 to 17,000 would use the road if reopened. But the court held that state law gave the city a great deal of discretion, and the court could overrule the City Council only if the council acted arbitrarily or capriciously. “The evidence showed Sorrento Valley Road had been used primarily as an alternative to the I-5, but that during the time the road was closed the I-5 had been improved and this freeway is being widened with 10 additional lanes, for a total of 24 lanes,” Justice Judith Haller wrote. “The record additionally showed there were plans to construct the nearby Carmel Mountain Road interchange at the I-5 during 2004 through 2007 and a parallel road on the east side of I-5 had been built, making it unnecessary to continue to provide a parallel road on the west side of I-5. The City Council further found that the ‘five-year, $5 million Transportation Demand Management Program’ in Sorrento Valley will reduce the demand for highways and streets in the area.” “Reviewing the record as a whole, we cannot say the city acted in an arbitrary or capricious manner,” Haller continued. CISA cited a line of cases in which the courts have limited cities’ abilities to partially close roads. , (1979) 91 Cal.App.3d 749, , (1982) 31 Cal.3d 545, , (1994) 23 Cal.App.4th 812. (See , May 1994.) CISA argued that if partial street closures were improper, then full closure of a street that many people want to use must also be improper. But the Fourth District said the three previous cases were different from the current controversy because the earlier cases involved attempts to prevent people who did not live in a certain neighborhood from using public streets. “The line of decisions concerned a local entity’s authority to decide which members of the public could use a particular public street, and not the issue here involving a legislative judgment that a road has become unnecessary for the entire public,” Justice Haller wrote. In an unpublished portion of its decision, the court rejected CISA arguments that the city had violated the California Environmental Quality Act, including the contention that the city should not have used the closed road as the “baseline” for environmental evaluation. The court said CISA did not explain how a different baseline would change the results of the EIR. The Case: , No. D043024, 04 C.D.O.S. 4149, 2004 DJDAR 5780. Filed May 14, 2004. The Lawyers: For CISA: Richard A. Schulman, Hecht, Solberg, Robinson, Goldberg & Bagley, (619) 239-3444. For the city: William Donnell, deputy city attorney, (619) 533-5800.

A state appellate court has gutted a City of Lodi ordinance governing cleanup of hazardous materials. The court ruled that the city ordinance exceeded the authority provided to local governments by the state’s Hazardous Substance Account Act (HSAA). Specifically, the court rejected the portion of the local ordinance that permitted the city to take the role of lead agency and issue an administrative action order directing a “responsible party” to clean up a site listed as polluted by the Department of Toxic Substances Control. Only the state can issue such a cleanup order. Lodi’s administrative action order issued under the city’s Comprehensive Municipal Environmental Response and Liability Ordinance (MERLO) “is preempted by HSAA because the City of Lodi is a site listed by the Department of Toxic Substances Control for which the state has exclusive jurisdiction over all remedial response actions,” the Third District Court of Appeal ruled. In 2002, the Ninth U.S. Circuit Court of Appeals ruled that the only portions of MERLO that could stand were those not in conflict with the federal Comprehensive Environmental Response Compensation and Liability Act (CERCLA, or the Superfund law). The ruling in that case, , 302 F3d 928, placed the city within the confines of CERCLA. The new ruling by the state appellate court “is the nail in the coffin for the MERLO ordinance,” said John A. Taylor Jr., an attorney who represented a now-defunct manufacturing company in the case. City Attorney D. Stephen Schwabauer, who inherited the case, did not bicker with Taylor’s assessment. The court said state law pre-empts the city’s ordinance, Schwabauer conceded. And without the ordinance, “we are just another PRP . We are not the lead enforcement entity. We are no longer a government entity that is trying to enforce a cleanup,” the city attorney said. Although no other cities have tried to establish themselves as lead enforcement agencies in such matters, the ruling is important because it ensures other localities will not copy Lodi’s approach, Taylor said. “All it did was create years of litigation and it did not result in any cleanup at all,” he said. William Wick, an attorney with the Oakland environmental law firm of Wactor & Wick, which is not involved with the Lodi cases, agreed that no one would emulate Lodi’s ordinance now. “Sometimes,” said Wick, “creative approaches don’t work.” Lodi’s approach has definitely been creative — so creative that the city has become bogged down in unusually complex and expensive litigation for a city of 60,000 people, not to mention a growing public controversy. Meanwhile, the contamination from dry cleaning fluids and solvents used in manufacturing remains. Since 1989, the city has known that about 600 acres in the central business district are contaminated with carcinogenic solvents. That pollution threatens the groundwater, which is the city’s sole source of water. In 1997, Lodi convinced the Department of Toxic Substances Control (DTSC) that the city should be allowed to assume the role of lead agency with the authority to prosecute actions against potentially responsible parties. After signing the agreement with DTSC, the city adopted MERLO, which created, according to the Third District, “environmental investigatory tools and a remedial environmental response and liability scheme.” The city started issuing abatement orders and soon found itself in court with landowners and their insurance companies. They contended the city was at least as responsible as the businesses because a leaky city sewer system had allowed the contaminants to leach into the ground. The litigation was sucking the city’s utility reserve fund dry. So in 1999, then-City Attorney Randy Hays and outside counsel Michael Donovan convinced the City Council to approve what might have been an unprecedented deal with Lehman Brothers. The New York financial house agreed to loan the city $16 million at roughly 25% annual interest, to be repaid with money from the owners of contaminated properties and their insurers. The loan provided cash for the city to continue its enforcement and litigation activities. Although the city did win $1 million from one insurance company, and the state Supreme Court upheld part of MERLO allowing the City Council to issue legislative subpoenas, , 98 Cal.Rptr. 2d 221 (2001), the city also accumulated a string of legal setbacks. In late 2003, the entire scheme unraveled. On December 9, 2003, the city hired Barger & Wolen law firm to audit seven years worth of bills submitted by Donovan and his associates. Shortly before Christmas, the published an expose that questioned Lodi’s unorthodox approach to environmental remediation, including the Lehman Brothers deal. The also reported that the city had paid Donovan, who had begun working as Envision Law Group during the late 1990s, more than $14 million over seven years, with another $2 million apparently owed to Envision. Donovan was the architect of MERLO and continued to represent the city. It was also revealed that the city and its lawyers had run up more than $5 million worth of consulting expenses. In January, U.S. District Court Judge Frank Damrell Jr. — who was handling the case on remand — warned the city’s lawyers from that their case was doomed. “While you move to vacate trial, I’m going to suggest that you consider vacating your litigation strategy,” Damrell said from the bench. What the City Council did immediately was vacate its lawyers. Both Donovan and Hays were fired that night. Now, the case is on hold. The city and Lehman Brothers have sued each other. New city attorney Schwabauer said he wants to settle all of those cases. In recent weeks, Envision has filed a claim against the city for old legal fees, and the city’s audit of Envision has stalled while the city figures out how to pay for the audit, which could cost more than $900,000. In the midst of all this came the Third District’s decision. The case began in November 1998, when the city issued an administrative abatement order to Randtron regarding the manufacturing company’s Sacramento Street property. The order directed Randtron to clean up the pollution and reimburse the city for abatement, monitoring and oversight costs. Randtron did not comply, so the city sued. Sacramento County Superior Court Judge John Lewis ruled for the city, ordered Randtron to comply and to pay the city $723,000 in attorneys’ fees and $541 in costs. Randtron appealed the entire decision, while the city, which had sought more than $1 million, appealed the award. The unanimous three-judge panel of the Third District overturned Lewis and said Randtron owed the city nothing. Under HSAA (Health & Safety Code §§ 25300-25395.40), DTSC is required to compile a list of sites that pose a substantial threat to public health or safety, or to the environment. The list is updated annually, and since the 1993-94, the list has included “Lodi groundwater site.” For sites on that list, the state is in charge of cleanup, the court ruled. “We hold that HSAA pre-empts local regulation in response actions on sites listed pursuant to § 25356 because it vests the state with sole jurisdiction over removal and remedial actions of all listed sites,” Presiding Justice Coleman Blease wrote for the court. “HSAA does not authorize a city to issue an administrative abatement action order pursuant to its own ordinance,” the court held, nor can DTSC authorize a city to do so. A city does have “limited authority to initiate and implement cleanup action of a listed site,” but must first obtain DTSC’s approval for the action. In this case, Lodi did not seek DTSC approval and, in fact, directed Randtron to prepare and implement a work plan that satisfied the city. Randtron attorney Taylor said the city was using the scheme to insulate itself from liability, which arose because of the leaky sewer system. State and federal law make clear the city must pay its share, Taylor said. City Attorney Schwabauer said he was unsure if the city would ask the state Supreme Court to review the ruling. “I think the implication of the decision is, don’t take lead agency status,” he said. The Case: , No. C037445, 04 C.D.O.S. 3890, 2004 DJDAR 5402. Filed May 5, 2004. The Lawyers: For Lodi: D. Stephen Schwabauer, city attorney, (209) 333-6701. For Randtron: John A. Taylor Jr., Horvitz & Levy, (818) 995-0800.

There is a hole in downtown Livermore where a downtown should be. Knowing this and seeing a rare opportunity to create a new downtown out of whole cloth, the city opted for a pleasant, small-town downtown with nice old buildings intermixed with some new ones, residential neighborhoods within walking distance, some retail, new pocket parks, and professional offices, all under the shady canopy of newly planted street trees. In other words, what Livermore wants is what nearly every California city has opted for in its downtown plan. And what’s the matter with that? Nothing, of course. And yet something troubles me. Maybe I have become bored with the seemingly endless iterations of pleasant, Midwestern-style streets and nostalgic buildings — a downtown, in short, that is really little more than a shopping district. These downtowns are not places of politics or business or industry or transportation — all those things that downtowns used to be, and apparently are no longer, at least in this retail-driven version of small-town America. Am I simply jaded, or is something amiss, not simply in Livermore, but in this entire soft-focus vision of urbanism? Change is certainly desirable for Livermore’s static, unsuccessful downtown that lies just south of the old Union Pacific tracks. This city, which has its roots in the Gold Rush period as a cattle ranch and later as a cluster of hay farms, has a rich and textured history, even if many of its historic structures have vanished. To the city’s credit, it retains a strong sense of itself as a Western town and even hosts an annual rodeo. Despite its Western heritage and a scattering of interesting buildings, downtown Livermore is more notable for what it lacks, rather than for what exists. One problem with downtown Livermore, is that it has little that is inherently compelling: No great architectural masterpiece, magnificent public square, cathedral, riverbank or dramatic land form set off the downtown. Neither City Hall nor Lawrence Livermore Laboratories, the town’s best-known employer, is located downtown. Redesigning downtown Livermore, then, is not merely a case of replacing a few “missing teeth.” The project here is to rebuild the jaw, the gums, make dental plates and cap the teeth. Given the once-in-a-century opportunity to make a center city, what kind of downtown has Livermore opted for? The master plan laid out by the firm of Freedman Tung & Bottomley shows how skillful present-day designers have become in deploying the tools of urban retrofit. The new downtown will be the “gateway” to the city, with plenty of retail along tree-lined streets, supplemented with new office and retail space. The densest area of downtown is a multi-block area with high-traffic retail space. There will be several “catalytic” mixed-use projects, including an arts-oriented center with a 1,500-seat auditorium. There will also be an arts district, including an alley that opens onto artists’ live-work housing. The city is contemplating an artist-in-residence program. New residential neighborhoods, with several different types of housing, surround the new commercial space in all directions. This is a pleasant vision, but it is so typical as to border on the banal. Perhaps this easy-going, “sweetness and light” notion of urbanism is just what is needed by an affluent community of educated, moneyed professionals, who may be looking more for a restful walk than bone-tingling nightlife. And how could any reasonable person object to walkable streets and tree-shaded sidewalks lined with old-fashioned store windows? Is this not the vision of public life, or something close to it, for which we have been fighting? Is this not preferable to the bottom-dollar schlock development, the chain stores, the fast-food franchises, the Wal-Marts and the Home Depots? Of course it is. Still, in the search for an “authentic” urbanism, why are so many cities willing to accept uncritically the importation of foreign ideas? In Livermore’s plan, we find the same formula, more or less, that has that has guided the redevelopment of cities throughout the state and perhaps the nation. Where is the vaunted “sense of place” if every other city in the East Bay has an arts district and live-work housing? In this way, the Freedman Tung & Bottomley scheme for downtown Livermore is a snapshot of our current idea about urbanism, at least the kind of urbanism that city officials and developers can agreed on. This downtown is a low-stress, generically pleasant area. And my cavils aside, maybe there is nothing wrong with that. The vision here is not of the downtown of commerce or government or multi-cultural stew pot, but rather of a relaxed, tasteful place to walk, to window shop and cool one’s jets. But if pedestrian movement and refreshment from work is the purpose of this downtown area, then maybe the plan should emphasize the delight of pedestrians above creating opportunities for retailers. While skillful to a high degree, the plan is disappointing for not making better use of the abundant open space that is available. (A graphic in the city’s presentation booklet, not shown here, shows an abundance of downtown parcels that are either vacant or “vulnerable” to new development.) With an almost empty canvas, I think that more open space is called for, especially a formal linear park, similar to Commonwealth Avenue in Boston or the Ramblas in Barcelona — a broad greenbelt with shops and housing on either side. If you are going to make a downtown from scratch, why not give it a bit more oomph and formality and civic feeling? The plan, as it stands, could be mistaken for one of the better outdoor shopping malls, such as Santana Row in San Jose. Even the low-key, everyday urbanism of Livermore needs a bit more drama and a lot less cliché.

In its ongoing legal battle over local government fees and assessments, homebuilder Barratt American has lost one round and won one round — and has seen the state Supreme Court accept for review a case where the homebuilder was victorious at the appellate court level. The English company’s loss came at the Fourth District Court of Appeal, which ruled that Barratt’s challenge of a facilities benefit assessment in the City of San Diego was filed after the statute of limitations had expired. Because the lawsuit was filed too late, the Fourth District did not consider the issue of whether the assessment violated Proposition 218. Barratt’s victory came in Riverside County Superior Court, where a judge ruled that the City of Corona had improperly based its Building Department fees on the total cost of running the department. Judge Michael Kaiser ruled that the fees must be based on the actual cost of providing service. He determined the city had collected $332,000 too much and ordered the city to decrease its fees so that the excess will be gone in two years. Barratt had sought $4 million from Corona, which the builder has sued three times in seven years. The state Supreme Court decided to review a case from Encinitas in which the Fourth District ruled that a lawsuit over automatic fee changes could proceed, but did not rule on the lawsuit’s merits. The appellate court ruled that the normal statute of limitations did not apply because Encinitas made no provision for public review (see , April 2004). The state high court voted in late April to accept , No. S123510 but deferred consideration until the court decides , No. S117590. In the latter case, the Fourth District upheld Rancho Cucamonga’s building permit and plan review fees for a 123-unit subdivision, in part because the statute of limitations for challenging the fees had run out (see , July 2003). The Rancho Cucamonga case has been fully briefed at the state Supreme Court, but the court has not scheduled oral arguments. In the recently decided San Diego case, the controversy concerned a facilities benefit assessment (FBA) in Pacific Highlands Ranch, where Barratt was developing homes. The assessments were intended to pay for freeway and road construction, police and fire protection, and sewers. The San Diego City Council approved the benefit assessment on June 25, 2002. On August 2, 2002, Barratt sued the city to determine the validity of the assessment. Barratt argued that Proposition 218 — the 1996 Right to Vote on Taxes Act — applied to the assessment and the city had not complied with the proposition’s requirements. San Diego County Superior Court Judge Patricia Cowett ruled that the statute of limitations was 30 days. Because Barratt filed its lawsuit 38 days after the City Council acted, Cowett dismissed the suit. Barratt appealed, and a unanimous three-judge panel of the Fourth District, Division One, upheld the lower court. Barratt argued that Proposition 218 repealed the 30-day statute of limitations in Code of Civil Procedure § 329.5. But the Fourth District determined that neither Proposition 218 nor a follow-up measure approved by the state Legislature addressed the timing of challenges. “Proposition 218 … conflicts with and renders unconstitutional contradictory procedures or process leading to the of an assessment falling within its ambit,” Justice Terry O’Rourke wrote for the court. “It does not conflict with process or procedures relating to the timing of legal challenges to such an assessment.” Barrett also tried the “continuous accrual” theory based on the state Supreme Court’s decision in , (2001) 25 Cal.4th 809. In that case, the court ruled that the statute of limitations started anew every time the city collected a utility users tax under an ordinance that violated Proposition 62, a precursor to Proposition 218 (see , July 2001). The decision was a victory for taxpayer advocates. But the Fourth District said the San Diego assessments were different. “Essentially, Barratt would have us hold that it suffered a new injury each day the city did not bring the assessment into compliance,” O’Rourke wrote. “This reasoning is unsound. If Barratt sustained any injury from imposition of the FBA assessment and became entitled to a legal remedy, it was when the city levied it in June of 2002.” The court never reached the question of whether the benefit assessment violated Proposition 218. The Case: , No. D042038, 04 C.D.O.S. 3111, 2004 DJDAR 4419. Filed April 9, 2004. The Lawyers: For Barratt: Walter P. McNeill, (530) 222-8992. For the city: John P. Mullen, deputy city attorney, (619) 533-5800.