For the first time, the Southern California Association of Governments (SCAG) has included new land use policies in its regional transportation plan. Essentially, the plan calls for infill and redevelopment in urban areas, and compact growth in outlying areas. That type of development pattern would, at least in theory, let more people work close to their job sites, and increase the convenience of public transportation and carpooling. Previous attempts to mesh land use planning with transportation planning have hit practical and political hurdles. For the 2004 update of the regional transportation plan (RTP), which must be updated every three years, SCAG planners had little choice but to consider land use. If planners based the RTP on current growth trends, as SCAG has in the past, the metropolitan region would fall out of compliance with federal air quality mandates, explained Mark Butala, SCAG senior regional planner. So SCAG turned to its regional growth visioning project, known as COMPASS. (The visioning document is scheduled for adoption by the SCAG board early this month.) Planners combined the growth trends with the principles that were developed as part of the COMPASS project to determine the projections for the transportation plan. The agency then put forward “bookend” scenarios. One called for a significant intensification of development in already urbanized areas. The other alternative spread out growth to the fringe, with major urban development in the Antelope Valley, the Coachella Valley and San Bernardino’s high desert. Those two scenarios got people’s attention, said Bev Perry, a Brea City Council member who recently completed a year as SCAG president. The resulting “vision” was a hybrid that calls for infill development on underutilized sites, focusing growth along transit corridors and nodes, adding density to certain transportation corridors, building housing near job centers, providing a variety of housing and preserving open space. “The bottom line is this: For a 2% change in land use, we get enormous benefits on the transportation and air quality side,” Perry said. “We’re not getting the congestion relief that we need, and we’re not getting it because of the land use factor,” Perry continued. “We never looked at land use before. It’s like the stars aligned this time.” The RTP — which calls for no less than $213 billion in road, rail, port and airport improvements by 2030 — was adopted in early April. Of course, SCAG has no land use authority. So getting even a 2% change will require cooperation from the region’s 187 cities and 6 counties. During the planning process, SCAG attempted to start lining up local support. SCAG planners rolled out the vision to all 14 subregions and negotiated with city officials while pouring over fairly small-scale maps. Those sessions produced a great deal of useful feedback, Butala said. “In almost every case, we were able to accommodate the changes requested by the locals,” said Butala, who recognizes that the road is still paved with political pitfalls. “We were very concerned with local control … but we’ve gotten a lot of support for this. People are starting to see the need to look beyond their city limits.” It is a significant development that SCAG has included land use in the RTP, said Jeffrey Lambert, a former City of Santa Clarita planning director who is now working as a private consultant. But SCAG has been criticized in the past for being too academic, and not pragmatic enough, noted Lambert, who has participated in the RTP and COMPASS efforts as a representative of California Chapter of the American Planning Association (CCAPA) and the Urban Land Institute (ULI). “What’s been missing in the past is some partnership beyond SCAG’s elected officials. They don’t think seven years down the line. They aren’t in office that long,” said Lambert. That’s where entities such as CCAPA and ULI may help. Planners and developers who support the concepts that SCAG is pushing “need to turn it into reality, really fast. We need a good example right away or the plan will be forgotten, like so many others,” he said. “I think there’s enough momentum to ensure that happens.” Still, getting city councils to modify general plans and approve potentially unpopular projects can be difficult, Lambert noted. On-the-ground examples and political leadership can help convinced reluctant council members, he said. Exactly what will be required of the cities is unclear. SCAG planners intend to concentrate on implementation during the 2004-05 fiscal year, Butala said. The level of changes to local land use plans and practices that are needed to comply with the RTP depends on individual situations, Perry said. The RTP assumes that existing growth patterns will remain in effect until 2010, at which time modest changes would begin to take effect. Some cities are already on the right track, Perry said. While the land use-transportation connection in the RTP is a first for SCAG, other regional entities are also trying to forge the same link. For example, the San Diego Association of Governments has adopted a Regional Comprehensive Plan that ties transportation funding to “smart growth” (see , April 2004). The Metropolitan Transportation Commission in the Bay Area has a Livable Communities and Housing Incentive Program that provides financial incentives for pedestrian- and transit-oriented development. And, maybe most importantly, during recent speaking engagements Business Housing and Transportation Secretary Sunne Wright McPeak has been touting the need for development that makes better use of existing transportation infrastructure. Contacts: Bev Perry, City of Brea, (714) 990-7718. Jeffrey Lambert, Lambert Consulting, (661) 313-0467. Mark Butala, Southern California Association of Governments, (213) 236-1945. SCAG website: www.scag.ca.gov

The philosopher Heraclitus once remarked that a wise man and a fool may look at the same tree and see different things. The observation also pertains to a reasonable person and a developer. A reasonable person, for example, would look at the Union-Pacific rail yard in downtown Sacramento and see 240 acres of dirt laced with a century of poisonous industrial byproducts. A developer looks at the same thing and sees a pedestrian-oriented urban district containing more than 4,500 units of housing and a shopping street, all oriented around a regional transportation terminal for trains and buses. The developer’s agenda is a tall order. To begin with, the Union-Pacific site is a very large brownfield — that is, an abandoned and contaminated urban site. The developer in this case is Millennia Associates, a group that includes Los Angeles architect Jon Jerde. As an architect, Jerde is responsible for such instant-urban environments as Horton Plaza in San Diego, Universal Citywalk in Los Angeles, the Mall of America in Minnesota and the Fremont Street Experience in Las Vegas. As a developer, Jerde last year completed a four-block residential-and-retail project in Salt Lake City. In November, the developers entered talks with Sacramento city officials on an exclusive-right-to-negotiate basis. Millennia and the city are expected to come up with a development plan some time this year. To date, the Millennia Associates plan is still sketchy because the developers want to meet with community groups before finalizing their development plans. The current site plan, therefore, is little more than a land-use map, with a new street grid and different development types identified. Still, the Millennia proposal is remarkable in at least three ways. The first is density: As mentioned above, the developers want to build about 4,500 dwelling units, including single-family homes, townhouses, apartments and condominiums. Essentially, the entire scheme could be described as a large-scale, transit-oriented development, with most of the shopping and transit connections within easy walking distance of housing. The notion of building housing on a contaminated site is notable in itself. In the past, housing and schools required a pristine level of clean up while commercial development was held to a lower standard. Not surprisingly, the typical brownfield project is an industrial or retail use, such as offices and big-box retail centers, but rarely housing. This year, a new rule from the state Department of Toxic Substances Control allows homebuilding on less-than-pristine land, if the developer constructs the housing atop a podium, i.e. the housing is built atop a parking garage. The advantage of podium housing is that it is versatile. The downsides are that landscaping options are severely limited on the hard surface of the podium floor and the streetscape can be uninviting. Ambitiously, the Millennia plan also calls for public parks on terra firma, which will be dug out and replaced with clean fill. The second remarkable part of the design is the proposal for a rehabilitated train depot that will be expanded significantly to include new platforms for both passenger trains and local commuter rail, as well as buses. Preservationists waged a battle with transit boosters, who wanted to demolish the old train station in favor of a modern, multi-modal facility. The current plan tries to accomplish a happy compromise by making the historic building the centerpiece of a much-expanded transportation center. Among the many things that are on the table are ways to finance a $160 million expansion of the historic train depot on the site. Recently, the same parties have been discussing the feasibility of moving the old rail station 400 feet(!), presumably to make it easier to build the new facilities. I predict that the cost of this adventure, as yet unknown, together with likely damage to the building will cause this brainstorm to lose its thunder. Architecturally, the most ambitious part of the plan would be to make Fifth Street into a elevated bridge that flies over the train tracks, while serving as a shopping street. (The developer likens this idea to the Ponte Vecchio, the bridge in Florence, Italy, that spans the Arno River and is lined with shops on either side.) The concept of a shopping bridge is vintage Jerde, a man with a bold imagination and long experience with retail design. If the idea were proposed by anyone other than Jerde, in fact, I would be more skeptical. But Jerde has the panache to carry off the design. Still, it is strange kind of urbanism. Another big plan for the Union Pacific site is to build a new basketball arena for the Kings. (Although this is not part of the Millennia proposal, the developers say they could accommodate the arena, if necessary, although it would take away about 20% of the housing.) Without more detailed plans, it is impossible for me to say much about the arena plan, which has been the source of much controversy in Sacramento. Of course, the success of downtown sports stadiums in Baltimore, Denver and other cities has made this idea fashionable. But very large buildings like arenas and stadiums do not harmonize easily with the kind of low-rise neighborhood envisioned by Millennia. On the other hand, the presence of the transit hub would be a strong rationale for locating the arena in the old train yards. As ambitious as plans are for the Union Pacific site, they seem almost small compared with an even larger proposal to the immediate north: The creation an 800-acre park, or something just slightly smaller than Central Park, in the delta where the American and Sacramento rivers meet. Some people claim that housing densities would have to triple in the Union Pacific site to accomplish both the city’s residential goals and the park. But a magnificent park near the water would be a worthwhile amenity for a city that could use the open space. Fools like me find it difficult to envision anything other than real estate on the northern edge of downtown Sacramento. Maybe there are enough wise men in the city who can envision something more.

With fewer than five months remaining in the 2003-04 session of the state Legislature, it appears that state lawmakers will approve few, if any, major land use bills. Still, there are scores of land use bills alive that nibble or even take big bites on the edges. With home prices continuing to reach new peaks despite an economic malaise, affordable housing remains a hot topic in the Capitol, and a number of bills favored by the building and real estate industries and by housing advocates are pending. Local government opposes most of those bills. Also alive is legislation addressing redevelopment, the California Environmental Quality Act and other land use matters. Exactly how much legislation will reach Gov. Arnold Schwarzenegger’s desk — and whether the governor will sign the bills — is unclear. The administration has several members with "smart growth" credentials, including Business, Transportation and Housing Secretary Sunne Wright McPeak, Resources Agency Secretary Mike Chrisman and California Environmental Protection Agency Secretary Terry Tamminen. However, the administration so far has focused on budget issues and has not pushed a land use agenda. The budget is also the top priority for many lawmakers. A housing element working group sanctioned by the Department of Housing and Community Development (HCD) has reached agreement on some secondary issues, such as council of governments’ methods for determining housing fair shares and by-right housing development. But the group, which includes representatives of all the usual interest groups, has not reached consensus on the big issues of state enforcement and self-certification of housing elements by cities and counties. Whatever the working group finally decides will likely appear in AB 2158 (Lowenthal). Housing advocates say that Assembly Speaker Fabian Nunez (D-Los Angeles), although a freshman with a limited voting record, appears to be interested in their issue. The speaker, who lives in downtown Los Angeles, is carrying some tenant legislation but no land use bills. One of the bills most closely watched by cities and counties is AB 2702 (Steinberg), which would limit the ability of local government to regulate second units. The bill does not contain all of the measures that were in last year’s unsuccessful AB 1160 (see , April 2003). But AB 2702 would require cities and counties to allow second units in all residential zones, prohibit the establishment of minimum or maximum second-unit sizes of less than 600 square feet, and prohibit "unreasonable" development standards. League of California Cities lobbyist Dan Carrigg said nondiscretionary approval of second units already exists under legislation approved two years ago. Under AB 2702, "the state would be writing the zoning ordinance for every community in the state," Carrigg said. "I don’t know why we keep doing this," Carrigg said of second-unit legislation. "Taking the public out of the process does not make the controversy go away." But Marc Brown of the California Rural Legal Assistance Foundation, which is sponsoring the bill along with the California Association of Realtors, called AB 2702 a "good, substantive" bill that addresses some local governments’ unwillingness to approve second units. The bill would still allow cities and counties to cap unit size, require the occupants of one unit to be a property owner and establish parking standards, Brown said. The bill also sets standards for housing being developed jointly with a school. One bill that generated tremendous controversy last year, SB 744, remains alive this year. The bill would establish a board within HCD to hear appeals from affordable housing developers whose projects have been denied or conditioned by a city or county. Although the bill has not been amended in nearly a year, the author, Sen. Joe Dunn (D-Santa Ana), has accepted a great deal of input on the legislation and is expected to introduce changes. While local governments generally oppose SB 744, some locals are getting behind SB 2980 (Salinas), which would allow a city or county to self-certify its housing element if the locality met housing production and other criteria. Another bill being co-sponsored by affordable housing advocates is SB 1818 (Ducheny), which would change the density bonus law. Currently, a housing development that includes at least 20% "affordable" units qualifies for a 25% density bonus. Senate Bill 1818 would create a sliding formula guaranteeing density bonuses of 12.5% to 40%. The bill also would give a developer a 15% to 40% density bonus if the developer donated a certain amount of land to a city or county for construction of affordable units. The bill is scheduled for its first committee hearing this month. A different bill by Sen. Denise Ducheny (D-San Diego), SB 558, is being sponsored by the California Building Industry Association (CBIA). It would require a city or county to zone enough land to accommodate 20 years of housing development. The bill is intended to drive the housing element, which has only a five- or six-year timeframe, said Tim Coyle, CBIA vice president. Major projects take a decade to break ground, so it only makes sense to require a 20-year supply, Coyle said. However, local governments would apparently get to determine what constitutes a 20-year supply under the legislation. The bill has already passed the Senate. Another CBIA bill back for a second year that also has passed the Senate is SB 493 (Cedillo), which attempts to encourage brownfield development by having state regulations mirror federal rules. Chiefly, the bill would grant legal immunity to "innocent landowners," "bona fide prospective purchasers" and contiguous property owners who had nothing to do with contamination of a site. The lengthy bill would end the state’s current system, in which anyone who is or has been owner of a contaminated property may be held liable for cleanup whether or not they had anything to do with the pollution — a system that bill proponents say discourages brownfield redevelopment. The bill has the support of developers, the California Redevelopment Association and several environmental justice groups. Environmental organizations are divided on SB 493 while trial lawyers oppose it. In the world of redevelopment, several pieces of legislation concern only specific jurisdictions, such as AB 1358 (Simitian), which would let cities of less than 100,000 people in San Mateo, Santa Clara and Santa Cruz counties spend housing set-aside funds within 5 miles of a project area. Although not directly related to capital-R redevelopment, one of the most significant pieces of redevelopment legislation is SB 1592 (Torlakson). The bill would require cities and counties to adopt infill ordinances or specific plans, identify potential infill development sites and offer at least five incentives for infill housing development. Senate Bill 1592 is scheduled to receive its first hearing this month. California Environmental Quality Act (CEQA) legislation appears to be light this year. Last year’s hot-button but unsuccessful CEQA bill, AB 406 (Jackson), is back this year and has passed the Assembly. The bill initially sought to prohibit cities and counties from allowing developers to hire their own CEQA consultants, a practice used by more than 100 cities and counties. That part of the bill has been deleted and the bill now prohibits developers from enforcing confidentiality agreements with their consultants. The bill also requires landowners to provide site access to local government officials and their consultants. As currently written, Assembly Bill 2251 (Lowenthal) allows greater use of master environmental impact reports for complying with CEQA’s cumulative impact analysis requirements. The bill, however, could be re-written to contain recommendations from a CEQA task force organized by the League of California Cities. Because of the state budget deficit, few pieces of legislation attempt to create new programs or allocate money in new ways. Major Land Use Legislation Proposed For 2004 • AB 389 (Montanez). Makes a number of changes to state law with the intent of expediting reuse of brownfields. Among other things, the bill defines a brownfield as urban or suburban land or buildings that have not been developed or redeveloped because of contamination or perceived contamination. The bill also requires Cal EPA to formalize procedures for public agencies to enter into agreements with prospective brownfield purchasers. • AB 2652 (Bates). Requires a utility company seeking Public Utility Commission approval for more electricity to consider restarting an existing facility or building a new power plant on a brownfield. • SB 493 (Cedillo). Provides cleanup liability immunity for innocent landowners, prospective purchasers and neighboring property owners. • SB 559 (Ortiz). Requires the Department of Toxic Substances Control to take a number of steps to encourage and speed the cleanup of brownfields. • SB 805 (Escutia). A "spot bill" that is likely to be amended to contain measures intended to speed brownfields reuse. • AB 2251 (Lowenthal). Allows broader use of master EIRs to meet CEQA’s mandate for studying cumulative impacts. The bill could be amended to include recommendations from a League of California Cities task force. • AB 2292 (Laird). Requires the Resources Agency to report on the types and effectiveness of mitigation measures used by state and local agencies. This bill could be amended to provide CEQA exemptions for certain infill development projects. • AB 3034 (Calderon). Encourages the use of master EIRs for potential biotechnology manufacturing sites. • SB 707 (Florez). Prohibits approval of dairies with at least 700 cows within 3 miles of a city or school if the dairy would have an adverse impact on the city or school. The bill also prohibits the use of negative declarations for these projects. • SB 711 and SB 1334 (Kuehl). Both bills subject to CEQA review any activity that converts an oak woodland to another use. SB 711 also applies to timberlands. • SB 1486 (Hollingsworth). Exempts from CEQA construction of any overpass proposed within an easement or right-of-way controlled by Caltrans, a local transportation agency, a city or a county. • AB 1426 (Steinberg) and AB 2882 (Cox). Competing measures that attempt to encourage affordable housing development in the Sacramento region. • AB 1970 (Harman). Allows cities of less than 25,000 people in the coastal zone that meet certain conditions to adopt a housing element that provides for no new housing units. • AB 2348 (Mullin). Allows a city or county to reduce its share of regional housing needs by 15% if the city or county has met at least 30% of its need and has met 30% more of its need than the region as a whole. • AB 2702 (Steinberg). Requires a city or county to permit second units in all residentially zoned areas. The bill also limits the conditions local governments may place on second-unit development. • AB 2836 (Maddox). Changes the definition of "moderate income" from households making up to 120% of median to 140% of median in "tight" housing markets and 200% of median in "severely tight" markets. • AB 2980 (Salinas). Allows a city or county to self-certify its housing element if certain conditions are met, including production of at least 15% of the jurisdiction’s share of units for low- and very low-income households. • SB 558 (Ducheny). Requires cities and counties to designate land for 20 years worth of housing development. • SB 744 (Dunn). Creates an appeals board within HCD to hear appeals from affordable housing developers whose projects have been rejected or conditioned by a city or county. • SB 1595 (Ducheny). Places a housing bond on the state ballot. • SB 1818 (Ducheny). Establishes a new, sliding scale for density bonuses based on the number and type of affordable units proposed, with a maximum 40% bonus. The bill also provides bonuses of up to 40% if a developer donates land for affordable housing purposes. • AB 269 (Mullin). Allows redevelopment agencies in San Mateo County to spend housing set-aside money outside the redevelopment project area. • AB 1358 (Simitian). Authorizes cities of less than 100,000 people in San Mateo, Santa Clara and Santa Cruz counties to spend housing set-aside funds within 5 miles of a project area. • AB 2212 (Runner). Exempts land in the Chino dairy preserve from the requirement that land in a redevelopment project area be "predominately urbanized." • SB 360 (Romero). Extends an exemption from prevailing wage requirements deadline for certain housing projects. • SB 1592 (Torlakson). Requires cities and counties to adopt an infill ordinance, identify potential infill development sites and provide at least five incentives for infill housing projects. • AB 304 (Nation). Requires the DMV to add $6 per year to all vehicle registrations in the nine-county Bay Area to pay for stormwater cleanup. • AB 392 (Montanez). Makes permanent a Caltrans program that awards environmental justice grants of up to $300,000 to local agencies and community groups. Money would come from the State Highway Fund. • AB 1546 (Simitian). Authorizes the San Mateo County Association of Governments to levy a $4 per year fee on vehicle registration to pay for management of traffic congestion and stormwater pollution. • AB 3011 (Laird). Authorizes the Santa Clara Valley Transportation Authority to levy an annual fee of up to $4 on vehicle registrations to fund traffic congestion management. • AB 496 (Correa). Creates the Santa Ana River Conservancy and authorizes the agency to acquire and manage properties within half a mile of the river. • AB 1788 (Leslie). Establishes the Sierra Nevada Conservancy, which could acquire and manage land in the mountain range. • AB 2097 (Oropeza). Extends for one year the Natural Heritage Preservation Tax Credit, which was suspended during the 2002-03 fiscal year. The bill provides tax credits to landowners who donate open space or agricultural land. • AB 2298 (Plescia). Requires all public water systems with at least 3,000 connections to install water meters. • AB 2631 (Wolk). Creates the Invasive Species Council that would identify, classify and work to control invasive and non-native species. • SB 898 (Burton). Originally a bill that prohibited the rezoning of most farmland unless certain findings could be made, the measure is a now a "spot bill" addressing the viability of agricultural lands. • SB 1052 (Budget and Fiscal Review Committee). Eliminates the Natural Heritage Preservation Tax Credit program. • SB 1447 (Kuehl). Requires the state to regulate the dredging or filling of any wetland, stream or pond not regulated under the federal Clean Water Act. • SB 1477 (Sher). Requires anyone proposing a project that impacts a wetlands to file a waste discharge report with the appropriate Regional Water Quality Control Board. The bill also contains a number of measures intended to protect and encourage restoration of wetlands. • SB 1607 (Machado). Prohibits local agency formation commissions from approving the extension of municipal services to land within the Sacramento-San Joaquin Delta protection zone. • SB 1820 (Machado). Prohibits a city that annexes land covered by a Williamson Act contract from canceling the contact. • ACA 14 (Steinberg)and SCA 11 (Alarcon). Both constitutional amendments would reduce the threshold for voter approval of special taxes and bonds for most infrastructure projects from two-thirds to 55%. • AB 1320 (Dutra). Makes it easier for a city or county to designate a transit village development district (which permits density bonuses) and allows creation of such a district around a bus hub, not only a rail station. • SB 926 (Knight). Moves the California Main Street Program from the now-defunct Technology, Trade and Commerce Agency to the Office of Historic Preservation. The bill also hands military base retention efforts and a space industry development program to the Business, Transportation and Housing Agency. • SB 1462 (Kuehl). Establishes the Southern California Military Greenway Commission with the apparent intent of blocking development under military flyways. • SB 1641 (Alarcon). Requires local governments to prepare a business impact report prior to approving a big-box store. Gov. Davis vetoed a similar bill. • SB 1776 (Bowen). Reinstates the Energy Commission’s expedited process for reviewing new power plants.

The City of Morgan Hill’s decision not to rezone the site of a closed hospital to allow for development of a private, Christian college has been upheld by the Ninth Circuit Court of Appeals. The Ninth Circuit ruled that the city did not run afoul of the federal Religious Land Use and Institutionalized Persons Act (RLUIPA), as San Jose Christian College had alleged. But in ruling for the city, the Ninth Circuit did not question the constitutionality of RLUIPA, which limits the government’s ability to regulate religious land uses. Previously, the Ninth Circuit had upheld RLUIPA’s constitutionality as it relates to the rights of prison inmates, but the Ninth Circuit has not previously considered RLUIPA’s constitutionality in a land use context. San Jose Christian College has asked for a rehearing because it disagrees with the court’s assessment of the case’s facts, said Brad Dacus, an attorney for the Pacific Justice Institute, which helped represent the college. Still, Dacus called the Ninth Circuit’s stance on RLUIPA’s constitutionality significant and warned that local governments should ensure that their ordinances comply. "RLUIPA as a matter of law is just as potent as it ever was," Dacus said. "It’s a very, very powerful civil rights statute." But John A. Ramirez, of Rutan & Tucker, who argued the case for the city, contended that Dacus was reading too much into the Ninth Circuit’s opinion because the question of the law’s constitutionality was not specifically before the court. "This opinion is helpful for state and local governments facing this type of litigation because it states quite clearly that RLUIPA is not a magic wand," Ramirez said. "RLUIPA does not provide a free pass … A lot of these people are of the belief that they really don’t have to follow the rules." Without a dissenting vote, Congress passed RLUIPA in 2000, after the U.S. Supreme Court ruled the Religious Freedom Restoration Act unconstitutional in , 521 U.S. 507 (1997). The new law prohibits government regulation that imposes a "substantial burden" on the exercise of religion unless the government proves the restriction is for a "compelling government interest" and it is the least restrictive means of furthering that interest (see , May 2002). Since the law’s passage, there has been a great deal of litigation nationwide. The Morgan Hill situation almost immediately became a test case. In 1999, Catholic Healthcare West (CHW) closed the 60-bed St. Louise Hospital and adjoining medical offices in Morgan Hill. The 30-acre property then went on the market with the restriction that it could not be used for medical purposes, as CHW had moved its operation to nearby Gilroy. The city zoning for the site is "planned unit development," which allows all uses shown on the development plan. But the PUD for the site was directed solely at medical uses. The college filed an application for a zoning amendment so that the college could develop a school for 1,200 students, outdoor sports fields, a gymnasium, a theater/chapel and dormitories. City planners told the college the application was incomplete because it lacked a site plan, building elevations and a landscaping plan. The college responded with a scaled back version of the application, encompassing only the existing buildings and 400 students. At the same time, the college’s marketing material trumpeted the original, larger project — a conflict that concerned planners because the California Environmental Quality Act (CEQA) prohibits piecemealing a project. Ultimately, the Planning Commission rejected the zoning application because it failed to comply with the city’s application requirements. The college then sued the city. District Court Judge Ronald Whyte ruled for the city. The college appealed, and a unanimous three-judge panel of the Ninth Circuit upheld Whyte. Among other things, the college argued that the city’s application of its zoning ordinance and CEQA to the project violated RLUIPA because it posed a substantial burden to the college’s religious exercise. The court rejected the argument. " t appears that College is simply adverse to complying with the PUD ordinance’s requirements," Judge Johnnie Rawlinson wrote for the court. "The city’s ordinance imposes no restriction whatsoever on College’s religious exercise; it merely requires College to submit a complete application, as is required of all applicants. Should College comply with this request, it is not at all apparent that its rezoning application will be denied." Rawlinson continued, " here is no evidence in the record demonstrating that College was precluded from using other sites within the city. Nor is there any evidence that the city would not impose the same requirements on any other entity seeking to build something other than a hospital on the property." Moreover, CEQA "adds nothing to the inconvenience otherwise imposed by the city’s zoning application requirements," Rawlinson said. Being required to delineate the scope of development does not burden one’s free exercise of religion, the court ruled. The court also rejected the College’s arguments that the city violated its rights to freedom of speech and assembly because the college could not convene for education and worship on that specific site. The court held that city’s ordinance and its enforcement of the law were content-neutral. " he fact that the church’s congregation cannot assemble at that precise location does not equate to a denial of assembly altogether," the court ruled. The Case: , No. 02-15693, 04 C.D.O.S. 2029, 2004 DJDAR 2988. Filed March 8, 2004. The Lawyers: For the college: John L. Dodd, (714) 731-5572. For the city: John Ramirez, Rutan & Tucker, (714) 641-5100.

A framework intended to guide all local general plans in San Diego County could be adopted as soon as June by the San Diego Association of Governments (SANDAG). Advocates of the framework say it has the potential to be one of the most effective regional plans ever devised in California. The Regional Comprehensive Plan (RCP) takes a decided turn away from the suburban model of land use planning and instead emphasizes transit, dense development along transit corridors and infill. The plan and SANDAG officials also make clear that the agency — which is also the county’s transportation planning agency — will determine many of its transportation investment decisions in ways that promote this more urban approach to land use. The "2030 vision" of the RCP’s Urban Form chapter starts off by saying, "Our homes are connected to attractive, efficient and well-integrated transit stations." "We have an opportunity to do something really great in this region," said Escondido Mayor Lori Holt Pfeiler, one of the plan’s biggest proponents. The RCP "is asking the cities to do things a little bit smarter." The basis for the plan extends back to 1988, when San Diego County voters approved Proposition C. The measure called for SANDAG to prepare the Regional Growth Management Strategy. The strategy eventually became the Region 2020 Smart Growth Principles, on which the RCP builds further. One of the major differences between the RCP and the earlier growth management strategy — and one of the qualities that gives people hope that the framework plan will actually be implemented — is that the RCP is a bottom-up plan. In addition to past SANDAG planning efforts, local general plans and extensive input from city and county officials and the general public provide the basis for the RCP. The result is a plan that tries to tackle two problems at the top of many people’s list in San Diego County: housing and traffic congestion. Housing prices have reached the point that only one-in-six families can afford the median-prices home, which crossed the $400,000 line for the first time in December 2003, according to the California Association of Realtors. Moreover, SANDAG planners estimate the county will add about 1 million new residents from 2000 to 2030, creating the need for 407,000 additional housing units. Existing city and county general plans, however, provide for only 314,000 new homes. "The reason is that the development planned for our remaining vacant residential land is mostly for single family homes on large lots, instead of the smaller single family homes, condominiums and apartments that are urgently needed," the RCP states. So the housing portion of the plan is heavy on infill, rezoning, rehabilitation, affordable housing development — and incentives to promote those activities. As for congestion, the RCP states flatly, "Our current regional transportation system will not meet the needs of a growing and mobile population." The plan insists that transportation and land use decisions must be better coordinated. The plan presents the concept of "smart growth opportunity areas." These would be areas in and near transit stations, areas of relatively high densities along bus routes, community and city centers, and rural villages in unincorporated areas. The existing Regional Transportation Plan provides $25 million for a "smart growth incentive fund." But it is clear that SANDAG policymakers intended to closely tie most transportation funding decisions to land use, especially to smart growth opportunity areas. These smart growth areas are not one-size-fits-all, which is encouraging to the cities. "Whatever is smart growth for downtown San Diego is not smart growth for downtown Encinitas," said Pat Murphy, Encinitas planning and building director. The smart growth opportunity areas, incentives and related matters remain ill-defined, but there should be more specifics in place by the time the SANDAG board considers the RCP in June, said Carolina Gregor, RCP project manager for SANDAG. Still, the idea is for local officials to identify their own smart growth opportunity areas, she said. The RCP encourages cities to cooperate, said Escondido Mayor Pfeiler. If Escondido works with San Marcos, Vista and Oceanside to facilitate transit and dense development on the transit corridor, those cities increase their chances of receiving transportation funding from SANDAG. "We get cities to collaborate by rewarding good behavior," she said. However, SANDAG has control only over federal transportation dollars and a local half-cent sales tax. If Caltrans and the California Transportation Commission do not along with the RCP, the plan’s effectiveness will be greatly diminished, said Nick Bollman, who heads the California Center for Regional Leadership. But there is reason to hope. Caltrans has provided funding for the RCP effort, and new Business, Transportation and Housing Secretary Sunne Wright McPeak has advocated smart growth and public transit for years. This proposed strategy for spending infrastructure dollars, however, worries San Diego County officials because it could reduce the funding available for road construction in unincorporated areas. The county’s proposed general plan, which has been in process for several years, seeks to accommodate growth in and near existing community centers, much as the RCP would like, but new roads will be needed, said Ivan Holler, San Diego County deputy planning director. Aside from the road-funding concern, the county and SANDAG are taking the same approach. "To a great extent, the two plans propose similar solutions for land use," Holler said, except the county does not use the term "smart growth." Both Pfeiler and Encinitas planner Murphy said their cities would have to make only minor modifications to their general plans to comply with the RCP. Their cities and most of the county’s 16 other cities are lining up behind the RCP. Some of the smaller cities do not feel threatened because they believe that under the RCP, San Diego and Chula Vista — the county’s two largest cities — will handle most of the housing deficit that SANDAG identified. Bollman said SANDAG is farther along with an implementable regional plan than any other council of governments in California. This, he said, is because of good leadership at SANDAG, because some city council members hold regional perspectives, and because the developed region is well-defined by the ocean to the west, Camp Pendleton to the north, rugged mountains to the east, and the Mexican border to the south. Additionally, proposals from former state Sen. Steve Peace for a new form of regional government and the recent expansion of SANDAG authority over transit (see , July 2002) have increased the dialogue about regional approaches, Bollman noted. Contacts: Carolina Gregor, SANDAG, (619) 699-1989. Lori Holt Pfeiler, City of Escondido, (760) 839-4610. Ivan Holler, San Diego County, (858) 694-3789 Pat Murphy, City of Encinitas, (760) 633-2696. Nick Bollman, California Center for Regional Leadership, (415) 445-8975. SANDAG website: www.sandag.org .

During the early 1990s, an issue of paramount concern to federal forest managers in California was the growing list of rare wildlife species whose old-growth habitat was being transformed rapidly into lumber. Fearing a repeat of events in Oregon and Washington during the late 1980s, when a series of lawsuits on behalf of the northern spotted owl all but shut down the Pacific Northwest timber industry, forest managers launched an ambitious effort to revolutionize agency policies and ensure a future for both wildlife and loggers. The outcome was a widely praised revolution in forest management, dubbed the Sierra Nevada Forest Plan Amendment, also known as "the framework" (see CP&DR Environment Watch , March 2001). Despite its popularity, it survived only about as long as the presidential administration that produced it. Earlier this year, the U.S. Forest Service (USFS) officially deemed the plan unworkable and unveiled a new version. Critics say the amended management plan is a barely disguised gift to the timber industry. Already, environmental groups have threatened to sue if the USFS adopts the plan after the administrative appeal period expires on April 29, and they've been joined in that threat by California Attorney General Bill Lockyer. Even the Republican administration of Gov. Arnold Schwarzenegger has been critical of the Bush administration's retreat from the original framework, which Schwarzenegger had praised during his successful campaign last fall. Caught in the middle of the escalating battle are communities scattered through the Sierra Nevada region, many of which already have begun making the transition from an economy based on timber to one based on trees that remain upright. Recent economic data show that tourism and recreation support as many jobs and provide as much income throughout the Sierra Nevada as all extractive industries combined, and that in several Sierra counties tourism already is the Number one industry. Moreover, some technology and manufacturing companies in the Sierra Nevada use the "pine tree factor" to lure and keep workers. "Studies show some people are willing to take a pay cut to live where there is easy access to places to hike, fish and ski," the Sierra Business Council noted in a recent report. "When businesses can offer an employment package that includes superb quality of life, they can attract top-drawer people without paying top-drawer prices. The Sierra Nevada, renowned for world-class recreation, has a competitive advantage other places cannot match at any price." The forest plan controversy is the latest chapter in a saga that began more than 15 years ago, when environmentalists filed a series of lawsuits over the plight of the northern spotted owl, found exclusively in old-growth forests of the Pacific Northwest. The suits accused the federal government of ignoring the bird's plummeting numbers and helping speed it toward extinction by allowing its habitat to be logged. In 1991, a federal judge in Seattle declared that federal agencies were guilty of "a remarkable series of violations of the environmental laws" by allowing continued destruction of critical habitat for a threatened species. Until the government came up with a plan to save the owl, he ruled, logging would be banned throughout the bird's range in Washington, Oregon and far Northern California. The ruling shut down virtually all logging on 24 million acres in 17 national forests. The amount of federal timber cut in Oregon and Washington fell by nearly 90%, and the take from private and state lands fell by half. More than 20% of the region's timber industry workers lost their jobs. The California spotted owl also prefers old-growth forests. It, too, has seen its habitat dwindle during decades of logging in the Sierra Nevada, as have such other rare creatures as the Pacific fisher and American marten. Stung by the sequence of court rulings that spawned such wrenching dislocations in Oregon and Washington, and facing the threat of litigation over similar circumstances in California, the USFS in 1992 began working on a broad revision of management policies governing 11.5 million federal acres in the Sierra Nevada. The goal was to avoid a similar court-ordered logging shutdown by making sure wildlife populations remained healthy enough to avoid Endangered Species Act protections. The process of developing the new plan involved local community groups, the timber industry, scientists, environmentalists, recreation groups, economists and state and federal agencies. It cost $20 million, involved nearly 200 public meetings and attracted the participation of 47,000 people. The plan that emerged from this process three years ago would have established a protected network of "old forest areas" to maintain suitable habitat for old-growth-dependent species. The plan put large trees off limits to logging, and estimated that 191 million board feet of timber would be available for harvest in each of the first five years. Although Bush administration appointees initially declared themselves supporters of the plan, that swiftly changed. As 2002 dawned, the new regional forester, Jack Blackwell, announced that he planned to overhaul the framework in response to numerous appeals. The revised version unveiled in late January would more than double the amount of timber being cut, to an estimated 450 million board feet a year. It would eliminate the protected "old forest areas" and allow larger trees to be cut. And along the way, the purpose of the plan morphed from saving wildlife into "A Campaign Against Catastrophic Wildlfires." That's the subtitle of the advertising brochure the USFS commissioned a marketing firm to produce. Allowing commercial loggers to cut more and bigger trees, the agency argues, is the only way to offset the high cost of removing brush and small trees that pose the greatest fire threat. The plan also relies on mechanical thinning rather than prescribed fire to reduce the fuel load. "Extremely hot, intensely burning catastrophic fires sweep through overly dense forests destroying old growth trees, wildlife habitat, and wrecking people's lives," Blackwell said in a press release announcing the new plan. "The size and intensity of wildfires are increasing dramatically. They are making the work of our firefighters more dangerous. I cannot let that continue on my watch. It will take years of concerted effort to significantly reduce the intensity of these fires, but the important thing is to get started now." To critics, all the talk about fire danger is a ruse. "The Bush Administration is scrapping a balanced plan with broad support from environmentalists, the state of California, the public and scientific community to reward his campaign contributors in the timber industry," charged Craig Thomas, executive director of the Sierra Nevada Forest Protection Campaign. Contacts: U.S. Forest Service Sierra Nevada Forest Plan Amendment, www.fs.fed.us/r5/snfpa/ . Sierra Nevada Forest Protection Campaign, (530) 622-8718. Sierra Business Council, (530) 582-4800 ( www.sbcouncil.org ).

A community college board’s decision to close and demolish a shooting range, clean up lead contamination at the site and transfer shooting range operations to a new location amounts to a "project" that requires review under the California Environmental Quality Act (CEQA), the Fifth District Court of Appeal has ruled. The court rejected the Yosemite Community College District’s arguments that the actions were not a project under CEQA , were exempt from CEQA and that a lawsuit against the district was moot because the district has completed the actions. "Because CEQA must be construed to effectuate its purpose of protecting the environment, and because a group of interrelated actions may not be chopped into bite-size pieces to avoid CEQA review, we conclude that the closure and removal of the Range, the cleanup activity, and the transfer of shooting range activity and classes to another range are all part of a single, coordinated endeavor," Justice Betty Dawson wrote for the court. "As a result, those activities constitute the whole of the action that we consider for purposes of determining the existence of a ‘project’ for purposes of CEQA." The shooting range in question opened on the edge of Modesto Junior College (MJC) in 1975 and was used by local law enforcement agencies and for the school’s criminal justice training program. As early as 1991, a college master plan contemplated closing the firing range because of campus growth in the direction of the range. On October 15, 2001, the district Board of Trustees adopted a resolution that authorized a lead abatement process, closing the range and donating the salvageable portions of the range to the Tuolumne County Sheriff’s Office. On October 18, an addendum was prepared that said the district had not made a decision on whether to dismantle or demolish the range. In November 2001, a group called Association for a Cleaner Environment (ACE) sued the district for failing to comply with CEQA. Stanislaus County Superior Court Judge William Mayhew accepted the district’s arguments that the actions were not a project, and that the issue was moot anyway. ACE appealed, and the unanimous three-judge panel of the Fifth District overturned the lower court. The central questions in the case were whether the community college district’s actions constituted a project, and, if so, whether that project was exempt from CEQA review. The district contended there was no project and, anyway, the activities were exempt. The court first decided what actions should be considered part of the potential project. The district, pointing to the October 18 addendum, argued that the Board of Trustees did not decide to demolish the range at the same time it chose to close and clean up the facility, so demolition could not be considered part of a project. That argument did not fly. "The record includes the following information to the contrary," Justice Dawson wrote. "First, the board minutes clearly indicate that plans for the removal of the MJC Range have been in place for almost a decade. Second, these plans have been reiterated in correspondence by district personnel. Third, the implementation of the range removal plans has been advanced by the district’s decision to develop the land near the range and by its neglect of range maintenance." Thus, closing the range — along with the cleanup plan and transfer of activities elsewhere — must be considered part of a potential project. Taken together, these are activities "directly undertaken by any public agency" under CEQA. Because the actions fit that definition, the district should have determined whether the actions could result in a direct or reasonably foreseeable indirect change in the environment, which would trigger formal environmental review. The court focused on the possible spread of lead contamination from the site to determine that the activities had the potential for impacting the environment directly. Thus, the district should have prepared an initial study to determine whether a negative declaration or an environmental impact report was required. The district argued for two different exemptions: CEQA Guidelines § 15322 exemption for alterations in educational programs and physical changes to the interior of existing school buildings, and CEQA Guidelines § 15330 exemption for minor cleanup actions costing less than $1 million. The court ruled that the exemptions did not apply because they did not cover the whole of the action that constituted the project. As for mootness, the court pointed to its opinion in , (2000) 77 Cal.App.4th 880 (see , March 2000). In that case, the court required the preparation of an EIR, even though the car wash at issue had already been constructed and was operating. The EIR could still result in project modifications or even removal, the court held in Woodward Park. "Similarly," Dawson wrote, " in this case there is a possibility that directing the respondents to conduct an initial study may result in a mitigated negative declaration or an environmental impact report containing mitigation measures." The court directed the community college district to prepare that initial study but declined to rule on the merits of the project. The Case: , No. F042272, 04 C.D.O.S. 2003, 2004 DJDAR 2931. Filed February 4, 2004. Ordered published March 4, 2004. The Lawyers: For ACE: C.D. Michel, Trutanich & Michel, (310) 548-0410. For the district: Marilyn Kaplan, (510) 845-3500.

A homebuilder’s lawsuit over the City of Encinitas’s fee scheme, which allowed the city building official to implement automatic fee changes, has been allowed to proceed. The Fourth District Court of Appeal ruled that even though the fees took effect years before the homebuilder paid them, the normal statute of limitations did not apply because the city made no provision for public review. " he city’s regulatory scheme allowed the fees to be increased at the whim of its building official without providing any notice to the public of the impending change," Justice James McIntyre wrote for the court. "This scheme frustrates two fundamental purposes of the Act — ensuring that the public receives notice of proposed fee increases and that local government agencies do not charge excessive fees for services they provide." The unanimous three-judge panel sent the lawsuit, filed by Barratt American, Inc., back to San Diego County Superior Court for further proceedings. In 1987, the Encinitas City Council adopted an ordinance requiring building permit fees to be set by council resolution, but authorizing the city building official to assign a valuation (known as a valuation multiplier) to different categories of structures. In 1992, the council adopted a resolution that included a fee schedule, in which the city calculated building permit and other fees by multiplying the square footage of a proposed building by the valuation multiplier. For three developments constructed by Barratt American, the city used valuation multipliers set forth by the San Diego Area Chapter of the International Conference of Building Officials (ICBO) that was effective on August 1, 1995. Those multipliers were not included by the city in the 1992 resolution. Barratt American contended it was overcharged by the city and filed a lawsuit in October 2000 seeking a refund. San Diego County Superior Court Judge Thomas Nugent found that the statute of limitations had expired, and he ruled for the city. Barratt American appealed, and the Fourth District overturned part of Judge Nugent’s decision. The appellate court determined that Barratt American’s challenge to the 1992 resolution was filed years too late because a 120-day statute of limitations applied. But the Fourth District ruled that Barratt American’s claim that the city improperly increased fees should be considered. The developer argued that the fees it was charged were illegal because the 1995 ICBO multipliers were never adopted by City Council ordinance or resolution. Typically, the 120-day statute of limitations begins when the legislative body adopts the fee schedule. But the Encinitas City Council never specifically adopted this fee schedule. The city argued that Barratt American had 120 days from the time it paid the fees to file a lawsuit. But the court rejected that contention, finding that the statute of limitations in Government Code § 66022 "expressly runs from the effective date of the fee legislation." In this case, there was no legislation. The city also argued that the fee change was automatic because the 1987 ordinance gave the city building official authority to change the valuation multipliers. State law allows such automatic fee adjustments, the city contended. But the court ruled that there was a difference between the automatic adjustments allowed by the Mitigation Fee Act and Encinitas’s approach. " hile enactment of both the ordinance and the 1992 resolution satisfied due process, neither expressly ‘provided for’ automatic fee adjustments. (Government Code § 66022, subdivision (a).) Stated differently, nothing within these two enactments put the public on notice that the city would periodically adjust the ultimate fees charged based on some objective criteria such as the ICBO publishing a changed valuation schedule," Justice McIntyre wrote. Moreover, the city must provide evidence that fees charged under the ICBO schedule are related to the cost of providing the actual services, the court noted. "Here, nothing prevented the building official from changing the valuation multiplier, and thus changing the fees, in any way he or she desired," McIntyre wrote. "At a minimum, due process requires a local agency to adopt an automatic adjustment formula based on some readily determinable and objective criteria that are expressly stated." Barratt American has challenged fees for plan checks, building permits and inspections in numerous jurisdictions. The developer even has a case pending before the state Supreme Court, , No. S117590. The Case: , No. D041162, 04 C.D.O.S. 1228, 2004 DJDAR 1510. Filed February 10, 2004. The Lawyers: For Barratt American: Jason Brent, Brent & Klein, (661) 823-1103. For the city: Jeffrey Dunn, Best, Best & Krieger, (949) 263-2600.

Society’s historical pursuit of utopia has resulted in two parallel and sometimes intersecting movements in physical planning: new urbanism and sustainability. These agendas spring from different impulses, but both are reactions to the form and effect of 50 years of suburban sprawl across the national landscape. New urbanism, the now popular name for what was originally called neo-traditional planning, is rooted in aesthetic nostalgia that rose along with post-modern culture during the 1980s. Its focus is recreating the look and feel of early 20th Century America. The sustainable development movement is sourced in the environmental movement that took root in the 1960s. Its focus is on resource consumption and preservation of the natural world. Developers being developers want to capitalize on fresh building ideas. Too often though, when they develop new urbanist projects from scratch, the result invariably has an ersatz, artificial feel. And why wouldn’t it? Recreating an ideal is never is as good as the ideal itself. That is why so many new urbanist communities feel like stage sets for "The Truman Show" or knockoffs of Disneyland’s Main Street. Sustainable developments also carry baggage because no matter how much energy and water is saved compared with conventional projects, new developments consume land and require energy and water. But as humans, we yearn to build. And the search for sustainable building cannot be anything other than noble. A pair of master planned communities – one Tucson and one in Orange County – illustrate distinctions in the way developers have responded to the desire to build green. Civano is a master planned community in Tucson that arose from a civic impulse during the 1970s to address energy consumption . An 818-acre, mixed-use community, Civano endeavors to serve as a model for the next generation of housing and community development. Civano is a planning hybrid: It incorporates new urbanist-influenced neighborhood design by combining southwest vernacular architectural styles with walkable, skinny street neighborhoods. The design themes combine with extraordinarily high standards of resource conservation, including a rigorous use of native plants and water harvesting for landscaping purposes. The community, which lies within and is therefore regulated by the City of Tucson, takes its name from a Hohokum word meaning a period of time when the native people of the Sonoran Desert lived at their greatest harmony with the environment. After years of planning, the project broke ground in 1999 in the southeast urban edge, an area replete with master planned communities. Today, 300 dwellings of the initial 550 are occupied – a slow start by California standards. But the focus on sustainable building has paid off. A pair of independent studies completed in 2002 showed that Civano has delivered the green goods. Dwellings in Civano consume 50% less energy than conventional houses built during the same period in the desert city. Even more impressive, water consumption was found to be 65% less than in other master planned communities in the Tucson. In March, with great fanfare in the real estate press, Orange County’s first "green" master planned community – billed as the largest in the country with 1,260 units planned – debuted. In contrast to Civano, the Terramor Village project turns out to be more the product of highly sophisticated merchandising than a result of real planning initiatives. In fact, when only 28% of targeted respondents said their home choices were motivated by environmental values, the developers chose to use avoid the use of the term "green" and replace it with the inexplicable "360° Living." The community is a sub-unit of the sprawling Ladera Ranch development, which, in turn, is a unit of the Mission Viejo Company. Without a hint of embarrassment, promoters of Terramor admit they are targeting "cultural creatives," a segment of the population identified by market demographers as trend setters with a hybrid of values. A glance at the site plan for Terramor reveals nothing other than the typical spaghetti-style street patterns that made Orange County famous during the 1960s – without the streets. Instead, in a surprising anti-new urbanist swipe, houses face greens. Envision Clarence Stein greenbelt towns with tract homes. Unlike Civano, the home designs have no apparent theme, and all homes are built by standard developers. Terramor does offer a laundry list of energy and water saving devices, and performance standards are required of the merchant builders who construct the projects within the planned polygons. But Terramor includes turf lawns for most houses, a notoriously water–consumptive choice in arid Southern California. So despite the claims about environmental responsibility, Terramor reads more like an experiment in new-age marketing than a exemplar for sustainability planning. journalist Nathan Callahan dismissed Terramor as an example of "greenwashing," misrepresenting a product so as to present an environmentally responsible public image. As a kind of validation of the power of combining the best features of new urbanism with a genuine commitment to sustainable building, Civano won magazine’s "Best New Community" award in January. The accolade is worth noting for planners and developers, for it reinforces the notion that careful planning to promote authentic values will always deliver more than crass merchandising.

There’s no denying it anymore: California has entered the infill age. Suburban development still continues apace, especially in the Central Valley and the Inland Empire. But most of the state is engaged in the process of adding more residents to existing neighborhoods and existing urban areas – and trying to find good ways to add more houses and shops to those neighborhoods as well. What all this means is that design and context are important. In fact, design and context are critical components to successful infill development. And they are important not because designers tell us so, but because the practical realities of making infill work in already crowded communities demand it. Let’s begin with design, which, in the postsuburban era, is necessarily the key to resolving incompatibility among land uses. As I stated in this column in February, traditional suburban zoning sought to solve all problems with distance, essentially eliminating conflict and incompatibility by placing different uses far away from each other. Indeed, the notion of separating incompatible land uses with space is the very legal basis of zoning. But in the postsuburban era, land is expensive. As a result, densities go up, and solving incompatibility with space becomes harder. Some years ago, officials in a suburb that was transitioning to higher densities revisited the city’s zoning ordinance. Because most new homes were now two stories instead of one, the zoning ordinance’s six-foot side-yard setback was no longer adequate. Residents did not want to look out their second-story bedroom window and see their neighbor getting ready for bed only 12 feet away. The Planning Commission’s solution was to increase the side-yard setback by two feet – from six to eight feet – meaning that neighbors would be staring at each other through their bedroom windows at a distance of 16 feet rather than 12 feet. This seemingly logical solution was the result of a system that has always used space, rather than design, to solve incompatibility. The problem arises when land economics do not allow you to use vast amounts of space to fix things. Purely from the perspective of solving the bedroom-staring problem, an 80-foot setback might make sense. By contrast, 16 feet does not make much of a difference when you are in your nightclothes. But in a world where land is expensive and production homebuilders do things a certain way, it’s about all the space you are going to be able to get. At some point you have to design your way out of incompatibility instead. At a "micro" level, this can involve very simple solutions like using townhome party walls or orienting the houses so that people don’t stare in each other’s windows. Or it can involve creating small but private spaces like courtyards and terraces, as Europeans and Asians have done for centuries. At a "macro" level – especially in a mixed-use situation or a situation where commercial and residential locations are in close proximity to one another – design is important as well. A parking lot or tennis court that might be open-air in a suburban situation might need to be enclosed. Most important, the construction items used to create separation – walls, for example – must be attractive and interesting, so that people feel invited to sit or eat or converse near them, rather than get pushed away from them. But design is not the only issue. Context is important too and, in an auto-oriented society like California, context is largely a question of roads. No matter how densely we pack our neighborhoods with new housing, those neighborhoods are not likely to be better for residents unless they can walk to many locations from their residences. This works in old, pedestrian-oriented downtown districts – look at Pasadena, Sacramento, or San Diego – but it is much harder to make it work on arterials. And arterials are where the infill action is. The state is filled with older suburbs that are bursting at the seams and are clearly more than ready for a transformation to higher density and more sophisticated development patterns – the San Gabriel Valley, the San Fernando Valley, West Los Angeles, the South Bay, and north and west Orange County, to name only a few areas in metro L.A. But all are built on an arterial grid system. It is true – as Dick Ramella of The Planning Center and many others have pointed out – that these commercial strips contain vast amounts of underutilized land that will be required to provide housing in the decades ahead. But most of these roads are also very wide, carrying large amounts of high-speed traffic. As they are currently designed, the arterials present a huge impediment to the pedestrian-oriented infill districts, even though the strips contain a lot of land ripe for infill development. Given California’s traffic-choked atmosphere, it is hard to imagine narrowing the streets in a way that will reduce capacity. This pattern – combined with California’s history of high-quality suburban design – often leads to high-density strip development that seems like an attractive and insular fortress. Maybe the best example is the new development projects near Park La Brea and the Farmers Market on Third Street in Los Angeles (see , January 1999). The Grove, a new shopping center by upscale retail developer Rick Caruso, is internally pedestrian friendly, but it does not contain any housing and the project is big and blocky from the Third Street perspective. Across Third Street, The Palazzo – a new luxury apartment complex – faces the street in a more friendly fashion, but the apartment residents can see only The Grove’s back wall. You can’t really blame Caruso and his designers – Third Street is a large and busy arterial street, and most of the customers will not come from The Palazzo. They will enter from the seven-story parking garage attached to the project. From that perspective, it makes sense to shut off the project from the street. The arterial becomes the divider rather than the connector. Something similar is also true at the vaunted Brea Town Center project in Orange County (see , January 1998). An almost European intimacy exists on the narrow side street, but Brea Boulevard – which runs right through the center of the project – is still six lanes wide and carries large amounts of traffic. It is nearly impossible to imagine the urban district of Brea Town Center jumping southward across busy Imperial Highway, even though the property is immediately adjacent and ripe for recycling. How context and design will work together on California’s arterial strips is difficult to predict. Perhaps in some cases the superblocks inside the arterials will become pedestrian havens – as suburban planners originally envisioned – but with higher density and more intense activity. In most cases, the biggest obstacle to this is the existing neighborhood fabric – auto-oriented single-family homes with wide if lightly traveled residential streets. But many of these neighborhoods will change on the edges with high-density housing and mixed-use development. That alone might provide residents with more places to walk within each superblock and create a more pedestrian-friendly environment inside the suburban grid. In other cases, it might be possible to pick and choose among arterials, facilitating some to maintain traffic flow and speed while selecting others for narrowing so that they can become the transit-oriented centerpieces of a kind of "arterial district." That would be a radical change from the deliberate sameness that suburbia originally created. And it would be a big step toward making the transition from suburban to urban in California.

California voters approved $20 billion worth of bonds for school construction and rehabilitation in March. In addition to the $12.3 billion for schools contained in Proposition 55, voters in 52 school districts approved $7.9 billion worth of local school bonds. Since 1998, state voters have approved three school bonds worth a combined $34 billion for everything from kindergarten classrooms to university research facilities. And since voters lowered the threshold for approving local school bonds from two-thirds to 55%, local bonds have passed at an unprecedented rate, with more billions becoming available for school construction every election cycle. The new capital investment in schools has occurred at a remarkably rapid rate. As recently at the late 1990s, funding for school buildings was a difficult question. Now, the system as a whole is close to having the amount of money it needs to keep pace with student needs, said Kim Rueben, a research fellow with the Public Policy Institute of California. "We’re finishing off the backlog, but we’re also building schools for the next decade," Rueben said. The turning point in the school capital improvement system might have been approval of SB 50 in 1998 (see , September 1998). That legislation capped school impact fees that are levied on developers and made local districts responsible for half the cost of new schools. But the legislation also made local bonds a routine part of the process. With the cap on fees in place, the building industry has been willing to support — or, at least, not oppose — state and local school bonds. "Part of the reason there is so much activity on the part of local districts is that to get your state money, you have got to have the local match," Rueben added. The next phase in the evolution of school facility finance was state voters’ approval of Proposition 39 in November 2000, lowering the vote requirement to 55% for nearly all local school bonds. Since then, more than 80% of local school bonds have passed. Under the two-thirds requirement, only about 60% of local school bonds were approved, and there were far fewer bond measures on the ballot than there are these days. Although the focus is often on elementary and high school districts, since April 2001, community college districts have placed 47 bonds before voters. Even though they are often far larger than any other local bond on the ballot, the community college measures have passed all but four times. "If it were a two-thirds requirement, it would be very, very difficult to pass," said Cheryl Fong, a spokeswoman for the California Community Colleges Chancellor’s Office. Indeed, only 10 of the 47 bonds since April 2001 have received at least two-thirds voter approval. The March 2 election was fairly representative of the school bond picture nowadays, although the total dollar amount might have been the largest ever. School districts placed 64 bonds on the ballot, and voters approved 52 (81%) of the measures. Thirty-six of the measures that passed received more than 55% of the vote, but less than two-thirds, according to statistics compiled by the Coalition for Adequate School Housing. The bonds ranged in size from $3.87 billion in the Los Angeles Unified School District (LAUSD) to $400,000 in the Washington Colony Elementary School District in Fresno County. Community college districts in March received approval for 10 bond measures worth $2.28 billion. Only two community college bond measures failed. Of course, many eyes were on Proposition 55, the $12.3 billion state bond that succeeded with only 50.9% voter support. Much like Proposition 1A in 1998 and Proposition 47 in 2002, Proposition 55 provides money for new K through 16 facilities, as well as rehabilitation projects. Like Proposition 47, the latest measure also has money earmarked for "critically overcrowded schools," which are primarily in urban districts such as LAUSD. Proposition 55 has $2.44 billion for critically overcrowded schools. The provision for urban school districts helps answer concerns about the equitable distribution of money for school facilities, said Rueben. Prior to 2000, when advocates for LAUSD sued to get some of the Proposition 1A money and the Department of Education changed its allocation system, most money went to school districts in wealthy communities or in areas that were fast-growing, Rueben said. Now, money flows to all sorts of districts, with the state providing hardship grants to the worst-off districts. Proposition 55 contains a total of $5.2 billion for new construction, an amount that should take four of five years for the state to allocate, said Duwayne Brooks, director of school facilities for the Department of Education. The state has nearly exhausted the $13 billion provided by Proposition 47 in only about a year and half. The state and could start awarding Proposition 55 money to school districts as early as this month, Brooks said. Districts have already submitted applications, and districts eligible for $350 million worth of facility modernization money have already had their applications approved, he said. Contacts: Duwayne Brooks, Department of Education, (916) 445-2144. Kim Rueben, Public Policy Institute of California, (415) 291-4400. Cheryl Fong, California Community Colleges Chancellor’s Office, (916) 323-5954. 20 Largest Local School Bonds on March 2 Ballot District -- County -- Amount -- Vote Los Angeles USD -- L.A. -- $3.87 billion -- 63% (pass) Chabot-Las Positas CCD -- Alameda/CoCo -- $498 million -- 59% (pass) Sierra JCCD -- Nevada/Placer/Sacramento -- $394 million -- 54% (fail) Riverside CCD -- Riverside -- $350 million -- 60% (pass) Desert CCD -- Riverside -- $346 million -- 69% (pass) Grossmont UHSD -- SD -- $274 million -- 60% (pass) San Joaquin Delta CCD -- Alameda/Calaveras/Sac./SJ -- $250 million -- 57% (pass) Rio Hondo CCD -- L.A. -- $245 million -- 62% (pass) Huntington Beach USD -- Orange -- $238 million -- 58% (pass) Cerritos CCD -- L.A. -- $210 million -- 57% (pass) Orange USD -- Orange -- $200 million -- 48% (fail) Saddleback Valley USD -- Orange -- $180 million -- 59% (pass) Clovis USD -- Fresno -- $168 million -- 62% (pass) Simi Valley SD -- Ventura -- $145 million -- 62% (pass) San Bernardino USD -- San Bernardino -- $140 million -- 60% (pass) Citrus CCD -- L.A. -- $121 million -- 57% (pass) Cabrillo CCD -- Monterey/Santa Cruz -- $118.5 million -- 60% (pass) Gavilan CCD -- Santa Clara -- $108 million -- 56% (pass) Santa Maria JUHSD -- Santa Barbara -- $98 million -- 50% (fail) College of the Sequoias CCD -- Fresno/Kings/Tulare -- $95 million -- 52% (fail)

Neighbors of a Marin County rock quarry, which has been the source of complaints and government investigations for years, have failed in their bid to pursue a class action lawsuit against the quarry for allegedly illegal activities. The First District Court of Appeal upheld a lower court decision denying a request for certification of a class action against San Rafael Rock Quarry, Inc. The court based part of its decision on the fact that no two residents were impacted in the same way by the quarry’s blasting, noise and truck traffic. The quarry has been operating on the edge of San Pablo Bay, near San Rafael, for a century. In 1982, the then-owners submitted a new reclamation plan pursuant to the Surface Mining and Reclamation Act. Based on that plan, the county rezoned the land and the mine has been a legal, nonconforming use ever since. In 1986, Dutra Construction Company purchased the quarry and allegedly increased the scope of operations. In 1996, the Bay Area Air Quality Management District cited the quarry for expanding without permits. In 2000, Marin County issued a notice of noncompliance with the 1982 reclamation plan. The county reported that Dutra Construction had increased the depth of the mining pit, ignored a date for terminating mining and increased truck traffic. Later investigations by the county and the City of San Rafael revealed buildings constructed without permits and violations of air quality standards. In June 2001, the Marin County grand jury issued a report critical of the county’s inaction regarding complaints about the quarry’s dust, noise, blasting and truck traffic. The grand jury urged the district attorney to take action against the quarry. Jonathan Frieman and Jan Brice, who live near the quarry, filed a lawsuit in January 2002. They argued that the quarry’s expansion in violation of state and local laws was an unlawful business practice under the Unfair Practices Act (UCL) (Business and Professions Code § 17200 et seq.). Frieman and Brice — who initially were joined by another individual who has since died and a citizens group that later dropped out of the litigation — also argued that the quarry’s expansion was a public nuisance. In July 2002, the plaintiffs sought class certification for the lawsuit. They wanted to include in the class anyone who resided within a 5-square-mile area of the quarry or Point San Pedro Road for at least 30 days since September 25, 1998 — about 11,000 people. The plaintiffs sought the profits that the quarry realized because of its noncompliance with the amended plan, zoning and various health and safety codes. Marin County Superior Court Judge Vernon Smith rejected the request for class action status. Frieman and Brice appealed, and a unanimous three-judge panel of the First District, Division One, upheld the lower court. First, the appellate panel ruled that Frieman and Brice had failed to show how class certification would benefit the aggrieved parties and the court — requirements for forming a class. According to the court, the plaintiffs sought class status so that they could force the quarry to disgorge its profits. "Plaintiffs argue that forcing the quarry to turn over all profits made during the period that it was in violation of the various environmental and building regulations would be an effective way to prevent future violations under the ‘necessary to prevent’ prong of the UCL. While that may be true, it is not dispositive," Presiding Justice James Marchiano wrote for the court. He suggested the plaintiffs could use the streamlined provisions of the UCL to obtain an injunction against the quarry. The court then turned to the issue of nuisance. Here, the court relied heavily on , (1974) 12 Cal.3d 447, a case involving noise, vapor, dust and vibration from the San Jose airport. In that case, the court refused to certify a class action because members of the class would have had such different experiences. The court in held: "An approaching or departing aircraft may or may not give rise to actionable nuisance or inverse condemnation depending on a myriad of individualized evidentiary factors. While landing or departure may be a fact common to all, liability can be established only after extensive examination of the circumstances surrounding each party. Development, use, topography, zoning, physical condition and relative location are among the many important criteria to be considered. … The result becomes a statistical permutation, and the requisite number of subclassifications quickly approaches the total number of parcels in the class." The same situation applied in Marin County, the First District held. The court pointed to two reports submitted by the quarry. A noise report by Charles M. Salter Associates, Inc., concluded that landscaping, soil conditions, ridgelines, intervening structures, atmospheric conditions, construction types and other factors would affect the noise heard by residents in the vicinity of the quarry. A report by Blast Dynamics, Inc., concluded that no two locations would experience the same vibrations from blasts at the quarry because of variations in rock and soil formations. "The variables that prevented class treatment in are analogous to the variables present in this case," Marchiano wrote. "Rather than mere variations in the measure of damages , these factors are keys to defendant quarry’s liability. Whether each resident even heard or felt the impact of quarry’s operations is subject to separate and differing matters of proof." The Case: , No. A101294, 04 C.D.O.S. 1616, 2004 DJDAR 2409. Filed February 24, 2004. The Lawyers: For Frieman: Patricia E. Henle, (415) 929-3197. For San Rafael Rock Quarry: John M. Taylor, Taylor & Wiley, (916) 929-5545.