Tehama County did not have to disclose publicly advice it received from an outside law firm on how to comply with the California Environmental Quality Act while dealing with a controversial development project, the Third District Court of Appeal has ruled. The unanimous three-judge panel ruled that the four documents were protected by attorney-client privilege or work product privilege, even though Tehama County shared the documents with the project's developer. In an unpublished portion of its opinion, the Third District ordered Tehama County to reconsider the financial feasibility of increased traffic mitigation fees for the project, because the county failed to disclose an advisor's e-mail expressing skepticism about economic feasibility claims. The retiree development, Sun City Tehama, is proposed by Del Webb California and would be built along Interstate 5 between Red Bluff and Redding (see CP&DR , November 2006 ). It would contain about 3,700 housing units and a 44-acre shopping area on a 3,300-acre site of oak woodlands and pasture. Tehama County approved the project's specific plan and certified an environmental impact report in late 2006. The California Oak Foundation sued to block the project, arguing that the EIR's handling of the project's impacts to oak woodlands and traffic was inadequate. The foundation lost in Tehama County Superior Court. The group appealed and won a reversal on one claim. Most of the appellate court's opinion is unpublished, meaning it may not be cited as legal precedent. The only published portion of the ruling concerns the release of four documents prepared by a law firm retained by the county. During trial court proceedings, the foundation asked Judge Richard Scheuler to compel Tehama County to put the documents into the administrative record. The county opposed the request, and Scheuler sided with the county. On appeal, the foundation argued the California Environmental Quality Act (CEQA) – specifically, Public Resources Code § 21167.6 – requires the disclosure. But the court said the statute did not apply here. Attorney-client or work product privilege "is a general background limitation to disclosure requirements" and the CEQA section "is at best ambiguous concerning intent to override privilege," the court concluded. The foundation's contention that the county had waived its attorney-client privilege when it shared the documents with Del Webb's attorneys was also rejected by the court. Writing for the court, Justice Kathleen Butz cited OXY Resources California LLC v. Superior Court , (2004) 115 Cal.App.4th 874, 890: "‘While involvement of any unnecessary third person in attorney client communications destroys confidentiality, involvement of third persons to whom disclosure is reasonably necessary to further the purpose of the legal consultation preserves confidentiality of communication.'" The foundation argued Del Webb's involvement was not reasonable necessary because the county's purpose was CEQA compliance, while the developer's purpose was winning project approval. Butz called the foundation's view of the county's role "too crabbed." "The purpose of achieving compliance with the CEQA law," she wrote, "entails a further purpose. It includes producing an EIR process and product that will withstand a legal challenge for noncompliance. Thus, disclosing the advice to a co-defendant in the subsequent joint endeavor to defend the EIR in litigation can reasonably be said to constitute ‘involvement of third persons to whom disclosure is reasonably necessary to further the purpose of the original legal consultation.'" In an unpublished portion of its decision, the Third District ordered Tehama County to reconsider its rejection of higher traffic-mitigation fees for the project because it failed to include in its EIR regarding economically feasibility. The project development agreement calls for about $10 million in I-5 traffic mitigation fees. Caltrans insisted the project's fair share for needed improvements should be about $60 million. The county refused to raise the fees, saying they were not economically feasible. In the e-mail, the county's economic advisor had earlier suggested that higher infrastructure costs might be feasible because they would be offset by the lower cost of land in remote Tehama County. The court ruled the county had a duty to disclose the e-mail because it concerned a point of contention among experts. The court sent the matter back to Tehama County "for the limited purpose of allowing the Board and the public an opportunity to consider the effect of this evidence and any further germane showing that it may engender on the issue of the financial feasibility of a greater fee to mitigate traffic impacts on I-5." The Case: California Oak Foundation v. County of Tehama , No. C057578, 2009 DJDAR 8485. Filed June 11, 2009. The Lawyers: For California Oak Foundation: Thomas Lippe, Lippe, Gaffney, Wagner, (415) 777-5600. For the county: Arthur Wylene, county counsel's office, (530) 527-9252. For Del Webb California: Richard Zeilenga, Stowell, Zeilenga, Ruth, Vaughn & Treiger, (805) 446-1496.

The City of Ontario is on the verge of adopting a general plan unlike any in California. Its goal of transforming Ontario into a bustling urban place of 350,000 residents with the state's most elaborate transit hub is not what sets the plan apart. Instead, it is how the plan is being developed on the Internet and in conjunction with other city plans and policies. The general plan is only a part of a more extensive "Ontario plan," and that broader map functions as an interactive website. In other words, the Ontario plan is not something simply loaded onto a website for future reference. Rather, it evolves over time based on day-to-day activities and the city's changing priorities. City Manager Greg Devereaux said Ontario did not want to invest heavily in a general plan update only to wind up with a document that sits on a shelf. "We wanted it to be a business strategy and to institute an approach to governance that has developed over the last 10 years among the council and the staff," he said. The Ontario plan, whose development is overseen by Devereaux's office, is intended to serve as a daily tool for use by city employees, residents and anyone doing business with the city. The plan provides comprehensive, easily accessible information on the city's operations – public works, emergency services, finance, land use planning, and more – as well as on such important community issues as health care and education. The idea is to develop the general plan in the context of all these dynamics, and vice-versa. Ontario officials want the general plan to be part of a feedback loop that includes city staff and the public, explained Kati Rubinyi of The Planning Center, the city's consulting firm. "The best way to leverage the general plan's context was to put it on the web," said Rubinyi, who serves as the site's architect. "It would afford us easy use and flexibility." When setting out to update its 1992 general plan more than four years ago, Ontario employed a fairly standard "visioning" process. That process was well along when the city hired The Planning Center in 2006 and the idea of a more democratic, web-based approach emerged. Since then, the consulting firm and the city have built and continually refined the website. Ontario Planning Director Jerry Blum said he sees the web approach as an effective way to get information into planners' hands more quickly. The first thing they do in the morning is log on to the site and instantly gain access not only to general plan policies but also to City Council priorities and information that is constantly updated by city workers in building, planning, public works, finance and other departments. "You can be sitting at your desk and have a wealth of information at your fingertips," Blum said. In addition, land and business owners, development applicants and the general public may jump onto the website and dig as deeply as they want for information about parcels of land, development projects, infrastructure and city programs. "You are able to vertically and horizontally layer information with the website," said Brian Judd, vice president of community planning and design for The Planning Center. "That's the biggest change from a paper document, where you create a separate website for community news, and a separate website for the policy plan, etc." Judd noted that people participating in development review meetings will no longer need stacks of documents spread across a table. Instead, everyone can simply follow along on the website. Judd, Blum and others presented a draft Ontario plan in the spring to the American Planning Association, California Chapter's California Planning Roundtable, which is working on "reinventing the general plan." Roundtable member and Fullerton Planning Manager Al Zelinka said roundtable members were a bit skeptical at first, but were mostly convinced in the end. "By and large, the roundtable found the presentation to be intriguing and innovative. I'm not saying that, wholesale, this is the way to go, but there are a lot of lessons in this for other cities," Zelinka said of the Ontario plan. "Using the general plan as an overall governance tool is an idea the roundtable found to be intriguing. And having it owned by the city administration, rather than owned by the community development department, is interesting." Zelinka said roundtable members had concerns about staffing levels to maintain such a comprehensive plan, and they questioned when plan changes might qualify as "projects" requiring review under the California Environmental Quality Act (CEQA). Ontario city officials say maintaining the plan is easy because so many aspects of it are part of daily operations. Moreover, the plan can evolve as needed. "You will never have to have the kind of update that people go through in this state," Devereaux said. Judd said that for CEQA purposes, a general plan amendment would remain a "project" but revisions of portions of the Ontario plan that are only linked on the website to the general plan would not trigger CEQA review. The distinction should be easy to detect, he said. Once the plan is adopted, the city and The Planning Center intend to immediately move forward with a monitoring and tracking program that includes performance measures, according to Judd. Ontario has scheduled final workshops and hearings on the general plan update this month, with adoption possible by the end of the month. In 2007, the City Council adopted an "Ontario Vision," with four fundamentals that reflect strong pro-growth sentiment. In light of that vision, The Ontario plan outlines a new Ontario Airport Metro Center north of the Ontario Airport that would be a site for a huge multi-modal facility featuring high-speed rail, magnetic levitation trains, bus rapid transit, airport shuttles, local transit and more. The metro center would be a major regional job center. The plan also reconsiders past planning for Ontario's 8,000-acre portion of the former San Bernardino County dairy preserve, from which nearly every dairy has since relocated (see CP&DR Local Watch , June 2002 , March 2000 ). The draft general plan calls for more housing units – up to 60,000 – and more of a mixed-use approach in the old preserve, now known as the "New Model Colony." Contacts: Greg Devereaux and Jerry Blum, City of Ontario, (909) 395-2010. Brian Judd and Kati Rubinyi, The Planning Center, (714) 966-9220. Al Zelinka, California Planning Roundtable, (714) 738-3347. Ontario Plan: www.ontarioplan.org . Planning Roundtable Tackles The General Plan A spate of climate-related legislation – especially last year's SB 375 – has focused attention on how long-range land use planning has consequences for the emission of greenhouse gases. Partly for this reason, the California Planning Roundtable (CPR) has undertaken a project it calls "Reinventing the General Plan." The project aims to develop a website-based incubator of good general plan ideas, explained Elaine Costello, who recently retired as Mountain View community development director and who is managing the CPR project. "Our theory is that progressive ideas and things that are innovative are parts of plans, but they are not the whole plan," Costello said. "We want to dig in and point out to people what is the best in these general plans." To that end, the roundtable is spotlighting aspects of new general plans by the cities of Ontario, San Diego, Sacramento and Truckee, and by Marin County. For example, the organization spotlights a map in the Sacramento general plan clearly showing which parts of the city the new plan leaves unchanged and which parts could change, she said. What is impressive about the Ontario plan is that it is truly an interdepartmental effort, and that its web-based approach allows for an immediate focus on implementation by making the plan a daily tool, Costello said. "It really is a city document," she said. "It really is a general plan for the entire community that will be used for budgeting and infrastructure decisions." Implementation of an adopted general plan's objectives and policies often gets lost amid the daily grind, Costello observed, and required annual reports on implementation can lead to last-minute scrambles to figure out what has happened. With the Ontario approach, "from the minute you start, you're looking at implementation." Writing a general plan should be less of a bureaucratic exercise and more about creating practical tools for planning and managing the city or county, she added. "People are spending a fortune on general plans, and they are not getting the value that they should. They are not getting the documents that they can use and revise easily." The California Planning Roundtable intends to roll out the new incubator website in time for the American Planning Association, California Chapter's annual conference in September. California Planning Roundtable: www.cproundtable.org .

There is no evidence that California's enterprise zone program – the state's largest economic development effort – has increased jobs in program areas, according to a Public Policy Institute of California study. "Our main finding is that, on average, enterprise zones have no effect on business creation or job growth," PPIC researchers Jed Kolko and David Neumark wrote. The two researchers constructed detailed maps of the 42 enterprise zones and surrounding areas, and matched their employment data with similar data for nearly every business in the state. They then compared employment and business growth within the zones to similar areas outside them. Researchers followed up with surveys of the zones' administrators. Although the overall program appears to have no effect on economy activity, the PPIC study found that zones with fewer manufacturers of goods and those in which administrators made comparatively stronger marketing efforts did stimulate some job growth. The state created the enterprise zone program in 1986. It offers a variety of tax benefits to businesses that move to and expand within zone boundaries – incentives that cost the government about $500 million annually. Zones were scheduled to begin phasing out three years ago, but state lawmakers have extended zone lifespans. The PPIC report is not the first to question the program's effectiveness. In 2006, a California Budget Project study – which the PPIC researchers dismissed as flawed – concluded no link existed between enterprise zone tax breaks and job growth. That same year, an Assembly committee called for greater enterprise zone accountability (see CP&DR In Brief , June 2006). Last year, the Legislative Analyst's Office recommended scaling back the program because of its uncertain benefits. In response to the PPIC study, the California Association of Enterprise Zones releasing a working paper, by University of Southern California business professor Charles Swenson, that concludes enterprise zones reduce unemployment and raise wages. The PPIC report is available on the think tank's website . Swenson's research is available on the USC website . The PPIC's enterprise zone report followed a separate PPIC study of local economic development efforts. Undertaken just before the ongoing recession hit, the study contains these findings: • The number of local economic development activities is increasing. • The more redevelopment projects a city undertakes, the more likely it will be spearheading other economic development efforts. • Such local characteristics as jurisdiction size, employment base, resources and needs influence what local governments do for economic development. • The perception of competition among local communities drives economic development strategies, although the influence of competition may be exaggerated. • Local officials are influenced by the belief that state fiscal policies favor retail activity over manufacturing. • Although local government officials feel positively about their efforts, there is little formal evaluation of local program effectiveness. The report by the PPIC's Max Neiman and Daniel Krimm recommends the state implement a more systematic economic development effort that includes consistent cooperation with local governments. The report, "Economic Development: The Local Perspective," is available on the PPIC website .

At the risk of repeating what I and about a million other people have already said, I'll say it again: California could learn a lot from Portland when it comes to transit and its climate-related benefits. In the Portland metro area, transit is efficient and relatively inexpensive for riders. In the Bay Area, the most transit-rich region in California, 28 different providers don't add up to an efficient "system," and transit operators are raising already high fares. As Bill Fulton observed recently, California's local and regional governments have a choice . Either they can comply bureaucratically with SB 375 by hiring consultants, writing reports, amending plans, spending lots of time and money justifying decisions – or they can take actions that everyone knows will truly reduce the greenhouse gas emissions partially responsible for climate change. In other words, they can worry about legal compliance, or they can do something about getting people out of their cars, which produce about 40% of greenhouse gas emissions. Providing efficient, affordable public transit can get people to spend less time on the road. This was reinforced to me last week when I was in Portland. I bought a one-day pass at a sidewalk kiosk for Portland's Tri-Met transit system . For $4.75, I could ride the Portland streetcar, the MAX light rail, the WES commuter train and any bus line as many times as I needed for the rest of the day. I ended up making two round trips on light rail, and several trips on the streetcar. Heck, I was in Portland for three days, and my car didn't leave the hotel parking garage until it was time to drive home. A week earlier, I was in the Bay Area, where my transit experience was less cheerful. I was staying on the Peninsula and had appointments in San Francisco. I started out by driving one mile to a Caltrain station, where I parked for free. I bought a $2.50 one-way ticket that took me to Millbrae's multi-modal transit center, where I would catch BART to downtown San Francisco. There was a one-minute headway in Millbrae. Under most circumstances, such a tight schedule would be ideal. But because Caltrain and BART have different operators, my Caltrain ticket was worthless in catching a BART ride. I had to buy a new ticket. Unfortunately, there was a line at the nearest ticket machine. I asked myself: Should I dash to another ticket machine farther down the platform, or wait for the line in front of me to clear? I waited, I reached the machine, I slid in four one-dollar bills, the machine spit out a ticket – just as the doors to the BART train closed. I didn't make it. Instead, I got to cool my heels for 15 minutes waiting for the next BART ride while having to stomach reminders that I couldn't drink coffee on the BART platform. My transit travels that day ended up costing me $14.35: $2.50 each way on Caltrain; $4 from Millbrae to downtown San Francisco; $1.50 on BART from downtown to the Mission District; and $3.85 from the Mission back to Millbrae. And, remember, I started the trip by driving the first mile. If I had taken a Samtrans bus, it would have cost me an additional $1.75 each way – for a total of $17.85 roundtrip. Daily Bay Area commuters can buy various passes to shave roughly 5% to 10% off the above rates, and some operators – including BART and Samtrans – accept a uniform pass that provides unlimited bus travel. But you have to buy a half-month or monthly pass. One-day riders like me – and commuters who might take transit once or twice a week – pay full freight, buy lots of different tickets and sometimes miss connections. That brings me back to that single $4.75 ticket that I bought at a sidewalk kiosk to get around the Portland metro area. I could have purchased the same all-day ticket from any bus driver. I should add that Tri-Met also offers a "fareless square" that services downtown, most of the hip Pearl District, the Portland State University campus and the convention center. Bus, light rail and streetcar travel is free in those areas. If California truly wants to get people out of their cars and onto public transit – and therefore reduce greenhouse gas emissions – it's obvious to me that imitating Portland's model is the way to go. There, I said it again. – Paul Shigley

Property assessments levied to fund the downtown Pomona Property and Business Improvement District did not violate Proposition 218, the Second District Court of Appeal has ruled for a second time. The court issued the same ruling in 2006, which the state Supreme Court agreed to review. Instead of deciding the case, the state high court struck down an assessment in a different Proposition 218 case – Silicon Valley Taxpayers' Assn., Inc. v. Santa Clara County Open Space Authority , (2008) 44 Cal.4th 431 ( SVTA ) – and directed the Second District to rehear the Pomona case in light of the SVTA ruling. Proposition 218, a progeny of Proposition 13 that added articles XIII C and XIII D to the state constitution, requires voter approval of most property-based assessments and fees. In SVTA, the court held that the measure shifts the burden of proof in assessment lawsuits to the government agency that imposes the assessment, and that courts should independently review levies. Pomona's Property and Business Improvement District (PBID), as do many of the state's business improvement districts seeking to boost commerce downtown, assesses property owners to pay for security, streetscape maintenance, marketing and special events. In 2004, the city's affected property owners voted 126 to 66 to form the district. The weighted voted, based on property assessments, was $338,000 to $153,000. In 2006, property owner Robert Dahms sued the city of Pomona to block the assessments. At the heart of Dahms's argument was the contention that Pomona, in forming the district, had violated Proposition 218's requirement that the assessment on each parcel in the district shall not exceed the reasonable cost of the proportional special benefit. Dahms's suit contended the city's discounted assessments for nonprofit entities, such as fraternal organizations and churches, was unjustified; some commercial properties were improperly assessed; and the city's method of determining assessments was illegal. In rejecting Dahms's claims, the appellate court disagreed that Proposition 218 does not allow discounted assessments because they would not be proportional to the benefits received. " rticle XIII D does not require that the assessment be no less than the reasonable cost of the proportional special benefit conferred on that parcel," Justice Frances Rothschild wrote for the court. "That is, article XIII D leaves local governments free to impose assessments that are less than the proportional special benefit conferred – in effect, to allow discounts." A discount on a parcel could run afoul of the constitution, Rothschild wrote, if it caused assessments on other parcels to exceed the cost of the proportional special benefit. However, Dahms did not argue this was the case in downtown Pomona. In a separate concurring opinion, Orange County Superior Court Judge Ronald Bauer, sitting by assignment to the Second District, disagreed with the majority's handling of this question. Proportionality is "at the heart" of article XIII D, Bauer wrote, and thus cannot be ignored. Because the PBID system has no revenue other than the assessments, it "seems inevitable that an assessment against any parcel that is disproportionately low in relation to the benefits conferred thereon (that is, a ‘discount') would lead to an impermissibly high assessment against one or more other parcels. This would be a fatal flaw in such a system." Because Dahms did not make this argument in his suit, Bauer sided with the two-justice majority in the ruling. In rejecting Dahms's contention that some commercial parcels had been improperly assessed, the court held that even though Proposition 218 shifted the burden of proof in assessment litigation to the city of Pomona, Dahms failed to "support his own arguments on appeal in a manner that will make them susceptible of rational evaluation." Finally, the justices disagreed with Dahms's contention that the city's formula for determining assessments was illegal because it counted only the length of street frontage of a property's address, and did not consider side street frontage. According to the formula, 40% of a property's assessment is based on street frontage, 40% on building size and 20% on lot size. The inclusion of building and lot size as criteria "should compensate for any disproportionality that might have resulted from exclusive reliance on front footage," the court ruled. Dahms further contended that the city of Pomona failed to separate "general benefits" from "special benefits" in its assessments, noting that rising property values resulting from the assessments would be a general benefit. In SVTA , the state Supreme Court struck down a parks and open space assessment because it provided only general benefits – such as increased access to recreational areas and protected views – to all properties no matter how situated. "The PBID is nothing like the district at issue in SVTA ," Justice Rothschild wrote for the appellate court. "In SVTA , all seven of the putative special benefits were merely the alleged effects of the two services directly funded by the assessments, namely, the acquisition and maintenance of open space land. In contrast, the special benefits conferred by the PBID are not mere effects of the services funded by the assessments. Rather, the PBID's services themselves constitute special benefits to all of the assessed parcels. The assessments directly fund security services, streetscape maintenance services, and marketing and promotion services for the assessed parcels. SVTA in no way suggests that those services are not special benefits." Dahms also argued the required public hearing on the assessment was premature because the city conducted the hearing on the 45th day after it mailed notices of proposed assessments. In rejecting the contention, the court noted that article XIII D requires the hearing "not less than 45 days after mailing the notice." The Case: Dahms v. Downtown Pomona Property and Business Improvement District , No. B183545, 09 C.D.O.S. 5797, 2009 DJDAR 6855. Filed May 12, 2009. Modified June 8, 2009, at 2009 DJDAR 8321. The Lawyers: For Dahms: Ronald Friendt, Martineau & Knudson, (951) 285-9955. For PBID: Scott Nichols, Alvarez-Glasman & Colvin, (626) 858-9121.

Approval of an 88-acre warehouse distribution facility at March Air Reserve Base was exempt from environmental review because the project was included in a general plan and a specific plan, both of which received environmental analysis, the Fourth District Court of Appeal has ruled. The unanimous decision of a three-judge appellate panel overturned a Riverside County judge who had ruled that the Tesco warehouse development was a discretionary project subject to the California Environmental Quality Act (CEQA). The Fourth District, Division Two, determined that the project required only ministerial approval and thus was exempt from CEQA requirements. During the early 1990s, the Pentagon began scaling back its operations at the site along the I-215 freeway in Moreno Valley by converting a 6,500-acre Air Force base into a 2,000-acre Air Reserve base. The March Joint Powers Authority – composed of elected officials from Riverside County and the cities of Moreno Valley, Riverside and Perris – adopted, in 1996, a redevelopment plan and accompanying environmental impact report for the land left unused. Three years later, the authority approved a general plan and master EIR for reuse of 4,400 acres. Among other things, the plan allowed for up to 2 million square feet of industrial development on 433 acres. The authority followed up in 2003 with a specific plan and a focused EIR that included a mitigation monitoring and reporting plan. The specific plan established guidelines for future development of a business park as well as office, commercial and other uses. Environmental activists sued to block the 2003 plan and EIR because of concerns over increased air pollution from trucks. The authority settled the suit by agreeing to limit truck traffic. In 2006, Tesco, the British company that operates Fresh and Easy Neighborhood Markets, applied for approval to build warehouse facilities totaling 1.925 million square feet on an 88-acre site. After finding the proposal was consistent with its specific plan and focused EIR, the authority approved the project and filed a notice of exemption stating that no environmental review was necessary because approval amounted to a ministerial act. The project has been built and is operational. A group called Health First sued in 2006 to block the Tesco project because, Health First argued, the authority should have completed an EIR for the development. In 2008, Riverside County Superior Court Judge Thomas Cahraman agreed with Health First, ruling that CEQA required the authority to conduct an additional environmental review of the warehouse project. The question before the Fourth District Court of Appeal was whether the March Joint Powers Authority's approval of the Tesco project was ministerial (exempt from CEQA) or discretionary (requiring CEQA review). In deciding the case, the court cited CEQA, the CEQA Guidelines and case law. A ministerial decision, it held, involves only the use of fixed standards and objective measures – and not the personal judgment of a public official. In approving the warehouse project, the authority measured Tesco's design plan application against requirements, fixed standards and proposed mitigation provisions contained in the 2003 specific plan and focused EIR, the court determined. In so doing, the authority "exercised no discretion and instead acted ministerially," Justice Barton Gaut wrote for the majority. "The Tesco facility is not a discrete CEQA project but one component of the specific plan for the larger March Business Center," Gaut wrote. "In contrast, a project may be deemed discretionary when environmental review has not been completed and further review is anticipated. But such is not the circumstance here, where the specific plan and the focused EIR offer a comprehensive environmental review of the proposed industrial development as eventually implemented by Tesco. "Instead," Gaut continued, "unless there are substantial changes or new information affecting the specific plan, there is no justification for additional environmental review of Tesco's design plan application." In its suit, Health First also contended that the Tesco facility did not comply with the 2003 specific plan's mitigation measures, but the court disagreed. "Because the mitigation plan applies to the Tesco facility without alteration or modification, Health First cannot argue that the mitigation measures are being implemented in a discretionary fashion," the court ruled. While deciding the case on the merits, the court questioned Health First's "standing" to bring the lawsuit in the first place because the group was essentially challenging plans and environmental documents approved in 2003, 1999 and 1996 long after the statute of limitations for legal action had passed. Nevertheless, the court resolved the lawsuit on the merits. The court hinted that lawyers on both sides of the dispute had gone overboard by loading on the court 70 volumes of administrative records dating to 1971, eight volumes of court proceedings and "almost 300 pages of overly elaborate briefings." "Our analysis resolves the primary issue involving ministerial, as opposed to discretionary, approval. No further discussion is required of the other issues raised by the parties," Gaut concluded bluntly. The Case: Health First v. March Joint Powers Authority , No. E045541, 2009 DJDAR 8441. Filed May 18, 2009. Ordered published June 10, 2009. The Lawyers: For Health First: Raymond W. Johnson, Johnson & Sedlack, (951) 506-9925. For the authority: Michelle Ouellette, Best, Best & Krieger, (951) 686-1450. For Tesco: Lisabeth Rothman, Brownstein, Hyatt, Farber, Shreck, (310) 440-9996.

For the second time in less than a year, the California Supreme Court has ruled for individual property owners contesting local government assessments, opening the door for future challenges based on Proposition 218. In the latest case, the court held that Tiburon property owners contesting an assessment levied under the Municipal Improvement Act of 1913 need not abide by cumbersome "reverse validation" procedures. The unanimous decision clears the way for the property owners to challenge the assessments as violations of Proposition 218. The precise reach of the court's ruling is unclear. Attorney Frank Mulberg, who represented himself and the owners of one other home, said the decision "opens the door, at a minimum, for class action lawsuits. The validation procedure as it relates to homeowners who want to contest an assessment is now gone. It is no longer in the law." That change is important, said Mulberg, because in a reverse validation lawsuit, a property owner has to prove an assessment is improper. But under the court's ruling, there is no assumption the assessment is legal, and the government entity bears the burden of proof. "Any one homeowner can now challenge the assessment for any reason, Proposition 218 or otherwise," Mulberg said. However, attorney Michael Colantuono, who represented the League of California Cities and the California State Association of Counties in the case, called the Supreme Court's decision "a big so-what." The ruling applies only to the 1913 improvement act, and local governments may utilize other statutes to levy property assessments, he said. Tiburon Town Attorney Ann Danforth agreed the decision will not have major implications, because all the court did was clarify the rules for challenging assessments. "The ambiguity is gone," she said. More important than the ruling itself is the state high court's ongoing treatment of local revenue measures, Colantuono suggested. "The decision is evidence that this is a court that is conservative on matters on local government finance," said Colantuono, who helped argue the Tiburon case at the high court. He rejected the idea that the latest ruling bolstered Proposition 218, the 1996 follow-up to Proposition 13 that requires an election on tax increases special assessments and fees. Conversely, Mulberg said the ruling, combined with a 2008 state Supreme Court decision, has breathed new life into Proposition 218. Last year, the state Supreme Court struck down a Santa Clara County open space assessment on 314,000 parcels. The court ruled the assessment – which an open space district had levied under the Landscaping and Lighting Act of 1972 – provided only general benefits and therefore was a special tax that was subject to Proposition 218's voter-approval requirement (see CP&DR Legal Digest , August 2008 ). The ruling in that case, Silicon Valley Taxpayers' Assn., Inc. v. Santa Clara County Open Space Authority , (2008) 44 Cal.4th 431, was a loss for local government and helped provide the basis for the more recent decision involving the Marin County town of Tiburon. In 2003, the Tiburon Town Council began work on the Del Mar Valley Utility Undergrounding Assessment District based on the Municipal Improvement Act of 1913. The town commissioned an engineer's report, which determined that placing utility lines underground would provide aesthetic, service reliability and safety benefits to the owners of 221 parcels. The report estimated the project would cost $4.2 million, and individual assessments would range from about $7,200 to $31,200. In early 2005, the town mailed ballots to property owners. The ballots were weighted based on the amount of the assessments, and owners of parcels representing 71% of the total proposed assessment voted for the project. In May of 2005, the Town Council officially formed the district and assessed the property owners. The owners of two properties – Mulberg and his wife, Shelley, and Jimmie and Jean Bonander (she's the city manager of neighboring Larkspur) – sued Tiburon. They argued the assessment violated Proposition 218 because the $31,146 assessment against each of their properties exceeded the special benefits conferred, as overhead wires would remain in place nearby. They further contended the town's procedures were illegal and the town had cherry picked parcels for inclusion in the assessment district. A trial court judge decided that the lawsuit was a reverse validation action. (A local government will frequently file a validation lawsuit seeking court confirmation that an assessment is legal.) Because Mulberg did not meet the summons and publication requirements in the validation statutes (Code of Civil Procedure §§ 860 – 870.5), the court threw out the lawsuit. The First District Court of Appeal upheld the lower court, ruling the validation procedure applied "regardless of whether the challenge is premised on asserted violations of Proposition 218 or any other constitutional provision" (see CP&DR Legal Digest , April 2007 ). The case then moved to the state Supreme Court. The issue, Justice Joyce Kennard summarized in the unanimous opinion, was whether the general validation procedure applied to assessments levied under the 1913 act. The court undertook a lengthy discussion of the validation procedure, and the 1913 act (Streets and Highways Code § 10000 et seq.), both of which the Legislature updated in 1961. The validation statutes contain a procedure to validate and to invalidate public agency matters, the court concluded. However, the 1913 act permitted only validation actions brought by the legislative body or the contractor involved. The 1961 legislative updates maintained this provision. " hen the Legislature in 1961 amended § 10601 to incorporate the general validation procedure, it expressly limited which parties might avail themselves of the new procedure," Kennard wrote. " he Legislature intended to activate the general validation procedure set forth in the Code of Civil Procedure only for action to validate assessments, not for actions to contest assessments." The court conceded this reading resulted in internal inconsistency, because § 10400 explicitly permits validation actions to contest an assessment. "In our view, the better interpretation of § 10601 is to give effect to the limiting language in that section even at the cost of rendering meaningless the section's cross-reference to § 10400," Kennard wrote. Thus, the Tiburon property owners did not have to comply with the validation procedure in their suit contending the city should have complied with Proposition 218. The decision sends the case back to Marin County Superior Court, where Mulberg said he intends to argue the merits of the case. Mulberg has filed two other lawsuits, as well. One suit involves a challenge to a second assessment district formed to cover the same undergrounding project. Tiburon formed the supplemental assessment district after learning the project would cost about twice as much as originally estimated. Tiburon won in the trial court, but the case, Bonander v. Town of Tiburon , No A119918 ( Bonander II ), is now at the First District Court Appeal. A third lawsuit, this one seeking damages for alleged breach of contract and breach of fiduciary duties, is pending in San Francisco Superior Court's Complex Civil Litigation department. The actual undergrounding project remains on hold. The Case: Bonander v. Town of Tiburon , No. S151370, 2009 DJDAR 8246. Filed June 8, 2009. The Lawyers: For Bonander: Frank Mulberg, (415) 388-0605. For Tiburon: Ann Danforth, town attorney, (415) 435-7370.

One person's infill is another person's environmental disaster. The Saltworks 50-50 project in Redwood City is a prime example. In Sunday op-ed pieces for the San Francisco Chronicle , architect Peter Calthorpe called Saltworks "one of the most compelling smart growth proposals." On the other hand, Save the Bay Executive Director David Lewis called the very same project "enormous sprawl into the bay." The differing perspectives from two thoughtful experts demonstrate just how difficult implementation of Greenbelt Alliance's all-infill plan for the Bay Area will be. As I wrote last week , Greenbelt recently rolled out "Grow Smart Bay Area," which says the region can accommodate all projected growth through 2035 in existing cities by developing, redeveloping and better using 40,000 "opportunity sites." Advocacy groups frequently publish glossy brochures and launch new websites. Grow Smart Bay Area is extraordinary in that it has three years of solid research as a foundation, and because it has an air officialdom. San Mateo County Supervisor and Association of Bay Area Governments President Rose Jacobs Gibson endorsed Grow Smart Bay Area as complementary to ABAG's own planning. California Air Resources Board Chair Mary Nichols called the Greenbelt plan a model for the rest of the state. Still, developing another 800,000 housing units in the Bay Area is an enormous challenge, which brings me back to the Saltworks project . Developer DMB and property owner Cargill propose reusing 1,400 acres between the Bayshore Freeway and the bay itself for 12,000 housing units. Cargill and prior owners have used the site for salt production for many decades. With half the site set aside as open space and restored marsh, the development would be quite dense and, according to proponents, walkable and rich with transit. Calthorpe � who helped DMB and Cargill design Saltworks � endorses the project because it would provide housing in an area with a great deal of employment while opening up the waterfront to the public. Lewis says it's crazy to build new houses at sea level in an area at risk of liquefaction during an earthquake, and the salt ponds should be restored with the others lining the bay. Even though the project would qualify as industrial land conversion within existing city boundaries, I don't think this is the sort of "redevelopment" Greenbelt envisioned. Rather, the Grow Smart Bay Area website talks about traditional redevelopment of downtown Redwood City with additional housing. There is little doubt downtown certainly could accommodate more residences, as could sections of El Camino Real corridor and some outdated commercial strips in town. But it's difficult to see how all of those projects would add up to 12,000 new units � and there is no doubt the mid-Peninsula can use the housing. So, does the Saltworks project qualify as infill? If it does, is it a wise project environmentally? Keeping in mind that some locals are still fighting downtown redevelopment that planners consider first-rate, is the Saltworks project even close to politically feasible in Redwood City? The answers that been provided to questions like these � as well the inability to provide any answers � has forced most of the Bay Area's new housing into the Central Valley since the 1990s. Greenbelt's all-infill plan will succeed only if it accompanies a sea change in attitudes about Bay Area land use. - Paul Shigley

It seems to me that, like so many other policy initiatives, this whole SB 375 thing can either be a bureaucratic nightmare or a useful way to move forward. We can devote an enormous amount of time and attention to figuring out how to comply with the law ... or we can figure out how to drive less. How do you focus on the second instead of the first? I put some thought into that while preparing a recent speech to a gathering in Ontario sponsored by the Leonard Transportation Center at Cal State San Bernardino. Amazingly, there were more than 100 people dweebie enough to attend this event on the Friday of Memorial Day Weekend. The panel that followed me included regional officials I quoted in my blog after the event, which not everybody liked. To be fair, Ty Schuiling of SANBAG didn't just rail at SB 375 as being an inefficient way to reduce greenhouse gas emissions; he also showed the transit-oriented developments that SANBAG is pursuing no matter what, especially along proposed bus rapid transit lines. The video doesn't show the presentation slides, but you can easily find those here . – Bill Fulton

The Bay Area can accommodate the next 25 years' worth of growth – 2 million additional people and 1.7 million new jobs – entirely through infill development, according to Greenbelt Alliance. The San Francisco-based advocacy group unveiled the all-infill strategy in a plan called "Grow Smart Bay Area" on Wednesday, June 10. "Our cities and towns have plenty of room to provide for the next generation of new homes and new jobs," said Jeremy Madsen, Greenbelt's executive director. Specifically, seven areas could accommodate 80% of predicted growth – the eastern half of San Francisco, El Camino Real corridor through San Mateo and Santa Clara counties, the suburban office parks of Northeast Santa Clara County, transit-heavy Southern Alameda County, the "inner East Bay" centered around Oakland and Berkeley, Central Contra Costa County, and a planned North Bay rail corridor. Greenbelt researchers and consultants identified 40,000 "opportunity" sites across the Bay Area. These include failing strip centers, unused parking lots, vacant parcels, underused business sites and struggling downtowns. The analysts then considered what type of development or redevelopment would be appropriate for a particular neighborhood. They increased potential housing units by 5% in neighborhoods where secondary dwelling units would be a good fit, and they accepted the Association of Bay Area Governments' estimates for 100 priority growth areas near transit stations and in downtowns. Crunch the numbers, and you find plenty of space to handle the region's predicted growth through 2035, according to Greenbelt. No need to exile Bay Area workers to Tracy, pave Solano County's prime farmland or build new towns in San Benito County. The folks at Greenbelt present a compelling vision of walkable, mixed-use, compact neighborhoods, abundant and easily accessible parks and open space, and many alternatives to the car. Elected officials from a number of jurisdictions – including San Mateo and Napa counties, Santa Jose, Santa Rosa, San Leandro and Mountain View – nodded their heads in agreement during the presentation. San Jose Mayor Chuck Reed noted that San Jose's population has increased by 500,000 people during the last 30 years, yet the city has not substantially expanded its boundaries. Still, the question is how to make the vision a reality in a region where anti-growth sentiment often runs strong. Obviously, good planning, zoning and development entitlement processes are necessary, but Madsen and people on a panel organized by Greenbelt repeatedly emphasized the importance of political willpower. Reed said it is crucial for infill proponents to engage in the process early so that elected officials have a platform for making decisions that may be unpopular with NIMBYs and slow-growthers. Will Fleissig, president of Communitas Development, agreed that vocal support for elected officials in making the right decisions is essential. Greenbelt does not frame Grow Smart Bay Area as a strategy for the region and its cities and counties to comply with SB 375, Rather, Greenbelt argues that an all-infill approach is the right thing to do environmentally, economically and socially. It took Mary Nichols, chair of the California Air Resources Board, to make the SB 375 tie directly. "Grow Smart Bay Area is a vision that we would embrace," Nichols said during closing comments Wednesday. "It really does provide a model for the state's regions. … It's up to us at the state level to do what we can do to support this vision." - Paul Shigley

California Planning & Development Report has joined the electronic communications revolution. On July 1st, we delivered the first PDF of our newsletter directly to subscribers' email inboxes! If you're not already a subscriber, now's the time to sign up. Because we have eliminated our printing and mailing costs, we've rolled our subscription price clear back to the 2000 level. That's right – you'll get an even better, more topical CP&DR at a nine-year-old price.

The future of the Governor's Office of Planning and Research appears very much in doubt. On Wednesday, the Legislature's Conference Committee on the Budget recommended eliminating OPR only hours after Gov. Schwarzenegger called OPR "a total waste." The Los Angeles Times quotes the governor saying, "The Office of Planning and Research ought to be about planning and research to come up with great policy answers, which this office doesn't do." I'll grant that OPR is not all it could be. But whose fault is that, Mr. Governor? Starting with Gray Davis and continuing with Schwarzenegger, the OPR director's position has become a political patronage appointment. Both governors passed over highly qualified policy experts in favor of political cronies. A political crony's primary task is covering the boss's ass, not pressing forward with policies that could be politically sensitive.   The Office of Planning and Research has some smart and very dedicated people on its chronically short staff. Give them the leadership, freedom and resources to develop "great policy answers," and they just might do so. - Paul Shigley