In this age of the embarrassingly intimate personal disclosure, I think it is time to come clean about my own personal vice: I am obsessed with housing density. Obsessed. Do not try small talk with me at a Christmas cocktail party because I am likely to start expounding on "units per acre," a topic which makes even public relations people scatter like confetti in a wind tunnel. I am, in fact, a housing nerd. Boring or not, there is an urgent need to create attractive, medium-to-high-density neighborhoods for California's ballooning population. At the Rivermark subdivision in the city of Santa Clara, three of the largest homebuilders in the country - Lennar, Centex and Shea Homes - come surprisingly close to satisfying my density obsessions. Housing comes in six different "products," from "large-lot" single-family homes to town houses and apartments. One hundred units of affordable housing are included in Rivermark, as are a K-8 grade school, a public library, an 18-acre park and scattered pocket parks. The 1,900-unit development fills about 152 acres formerly occupied by the Agnews State Hospital; Sun Microsystems has taken over the remaining 80 acres. The overall density of the project is 20 units per acre, which is at least twice the prevailing density in the surrounding neighborhoods. At its highest level, the density rises to 50 units per acre. Rivermark has been praised as a progressive project for providing some New Urbanist-inspired architecture, affordable housing and open space. Architecture critic Alan Hess, however, seemed less impressed, describing Rivermark in the San Jose as "just one more step in evolving and perfecting the art of suburbia." The project has "taken existing ideas and made them more sophisticated, more effective," according to Hess. Rivermark is an uneasy amalgam of urban and suburban. Resisting the suburban label, master plan architect Mark Day rightly points out that the master plan has urban formality and urban densities. In fact, the project has a pedestrian orientation, houses with recessed garages and a combination of housing types and income levels - all plusses on the urban side of the score sheet. What Rivermark fails to deliver, however, is a thoroughgoing urbanism. Like many master plans both urban and suburban, Rivermark is more or less a self-contained island. The site plan looks inward. Few streets connect Rivermark to the surrounding community beyond the arterial roads that define the four sides of the property and the existing Agnew Road. The retail portion of the project is a formula-driven "neighborhood center," all clumped together in its own realm. By falling back on formula, the developers have missed the opportunity to create a public shopping street stretched out along a boulevard. This failure to fully develop streets as public places is the most notable failure of the plan because urban character and coherence largely depend upon streets. In a similar way, several large-scale multi-family developments are isolated in the northwest corner of the plan and situated on their own "super-blocks," rather than being arranged as more linear projects that front on a major street. There is, again, a lost opportunity to use streets to unite different housing types. And there is a failure to take full advantage of the library-school-park complex as a genuine public place. This is a set of civic buildings that needs to be played up as the of this neighborhood, with a conspicuous courtyard. But the site plan, at least the way I am reading it, does not exploit this grouping to make it stand out dramatically from its neighbors. We need a public space to mark the public nature of these buildings. Rivermark also raises the growing tension between the California imperative for the detached, single-family home and the drive to create greater housing density overall. Despite the many parks inside the Rivermark plan, Hess has written about the "claustrophobic" feeling of houses on very small lots, which I believe is the result of shoe-horning single-family homes into increasingly small lots. At least some of Hess's claustrophobia might be relieved by consolidating much of the housing into townhouses or courtyard housing, and arranging it along streets, while upping the number of parks and other spaces, such as esplanades that would run down the center of streets. This approach would have the dual effect of making the housing less claustrophobic, by replacing the sense of crowding with one of continuity. Of course, many of the affluent young homeowners of Silicon Valley would rather live in a detached house, no matter how cramped, than in row housing. In this way, Rivermark is a case where California confronts the conflict between the traditional single-family home and the need to increase residential densities. Single-family housing remains a resonant symbol of independence and affluence, but the notion of "high-density" detached housing may have its limits. For all their virtues, the symbols of comfort at Rivermark - such as yards that are shrunk to postage-stamp size - may work against actual comfort. To criticize the critic, I am probably failing to acknowledge that home building is a conservative, market-driven business, to which change comes very slowly, just as slowly as any change comes to society as a whole. I do not demonize homebuilders. Their goal is to promote urbanism only so far as it helps them build and sell houses. That is the narrow role of homebuilders in a free market economy. Rivermark is praiseworthy for advancing certain ideas in home-building, and it is encouraging that the middle-of-the-road homebuilders are thinking in progressive ways because it is the middle-of-the-roaders who ultimately build our cities. We cannot complain entirely when we leave critical decisions in city making largely up to developers whose goals are only tangential to urban design. The making of neighborhoods that can grow into delightful places is the result of a larger public discussion, and in changing the tastes of the housing "consumer." For the time being, Rivermark is the better mousetrap. But as the boring housing nerd at the Christmas party will tell you, sometimes better is not good enough.

Competing desalination projects — one public, one private — have been proposed to serve the thirsty Monterey Peninsula. In the northern corner of the county, the private California-American Water Company, or Cal-Am, wants to build a desalination plant next to a power plant. On the peninsula, the Monterey Peninsula Water Management District (MPWMD) is proposing to build a similar project in Sand City. Only one of the projects is likely to be built. The state’s Public Utilities Commission favors the Moss Landing project. Both desalination projects are designed to replace water that Cal-Am has pumped from the Carmel River. In 1995, the State Water Resources Control Board ruled that Cal-Am did not have valid rights to 70% of the water. Cal-Am was ordered to reduce its water use immediately, and a 20% water cutback has been in effect for peninsula water customers ever since. The mandatory rationing impacts about 110,000 residents of the region, which includes the cities of Monterey, Seaside, Sand City, Del Rey Oaks, Pacific Grove and Carmel, along with nearby unincorporated areas. The area gets no water from the State Water Project. Although Cal-Am provides water for the region, state legislation passed in 1978 created the MPWMD to manage water issues, develop additional supplies and oversee agencies that provide water. The district provides no water service, and if it builds the Sand City desalination plant, the district could turn over operations to Cal-Am, said Andy Bell, district engineer. Cal-Am initially proposed damming the Carmel River, but environmentalists fought the plan. In 1995, 57% of district voters rejected the proposed 24,000-acre-foot New Los Padres Dam. Two years earlier, they also gave a thumbs down to a desalination plant. Henrietta Stern, project manager with the district, said district voters turned down desalination by a close vote in 1993 because they thought they would be approving a dam soon. But 10 years later — and after years of rationing — the ballot box results could change. In recent years, both state and local officials told Cal-Am they would not approve a dam for environmental reasons. Cal-Am announced in February the proposal to build a desalination plant at Moss Landing, which is located outside of the water district that it serves. Under the legislation that created the MPWMD, voters get a chance to vote on water issues, according to Stern. But because Moss Landing is outside the district’s boundaries, voters will not be able to cast ballots on the project. Further taking the project out of local control, the PUC has become the lead agency in preparing the environmental impact report for the Moss Landing project, a role that the County of Monterey had asked to handle. A PUC administrative law judge ruled in the PUC’s favor, a position supported by Cal-Am. The county has appealed that decision to the Governor’s Office of Planning and Research, according to Stern. The PUC suggested the Moss Landing desalination plant after a state law passed in 1998 that required the commission to come up with alternatives to building a dam on the river. The PUC came out in favor of desalination — first suggesting the Sand City site in a draft report, then choosing Moss Landing in its final report, Stern said. The Sand City plant would take its water from below sand near the ocean, avoiding potential harm to small sea organisms. But the PUC’s 2002 report rejected the Sand City site because of “limited seawater production capacity along the beachfront,” and because of concerns about brine disposal and getting permits for using California Parks and Recreation land. But the Moss Landing proposal also faces obstacles. A desalination plant at Moss Landing would have a ready supply of electricity because of infrastructure located there for a recently expanded Duke Energy power plant, which is the state’s largest. The water used to cool the power plant’s engines could be used to dilute brine discharges from the desalination process. But water pipes into a Moss Landing desalination facility would have to filter out plankton and other sea life. In addition, a pipeline would have to be built to send water to customers on the peninsula. Neither of the desalination plants provides any water for future growth, according to Stern and Meg Catzen, project director for Cal-Am. But county officials have indicated an interest in getting more water, Catzen said. “The county hasn’t asked us for a defined amount of water,” she added. The Sand City project would generate 8,400 acre-feet of water a year, and Moss Landing would generate 9,400 acre-feet a year. Residents of North Monterey County have voiced opposition to the new construction in Moss Landing which, so far, is offering no benefit to them. “In North County, we do not have a feeling or opinion that we have any local control over what’s happening to us,” said Carl Chase of Prunedale, a member of the North County Citizens Oversight Coalition. Although the cost of desalination has decreased in recent years (see CP&DR Trends, February 2002), both plants in Monterey County are expected to cost between $150 million and $200 million to build, Stern said. By comparison, a smaller desalination plant built in Santa Barbara during the early 1990s cost $34 million. Stern defended the Sand City project as simpler and contended it would not involve regional issues that could affect the Moss Landing plan. An EIR for the Sand City project is underway and voters could be deciding on the project in November 2004. Catzen said the initial environmental studies for Moss Landing could take more than a year to complete. The California Coastal Commission recently released a report on desalination, noting that two dozen desalination projects are proposed along the state’s coast. It said that application of the Coastal Act to projects will differ depending on whether the project is a public or private facility. “The Coastal Act is based on the coastal resources of California being public resources, and the consumptive use of seawater by private interests will require thorough evaluation and adequate assurances that public uses and values will be protected,” the report said. The study said that marine life could be affected by water intake and brine discharges. But it said both can be mitigated by proper design, siting and operations. Both of the proposed desalination sites in Monterey County are near the Monterey Bay National Marine Sanctuary, and “you cannot build new outfalls or new intake pipes in the sanctuary area,” Stern said. Contacts: Henrietta Stern, project manager, Monterey Peninsula Water Management District, (831) 658-5600. Meg Catzen, project director, California-American Water Company, (831) 646-3206. California Coastal Commission desalination report: http://www.coastal.ca.gov/energy/Th9b-8-2003.pdf

A redevelopment agency may sue a landowner to force cleanup of contaminated property within a redevelopment project area, the Fourth District Court of Appeal has ruled. The court further held that the redevelopment agency need not have expended resources on the cleanup before filing a lawsuit. The Polanco Redevelopment Act “expressly provides redevelopment agencies with the power to take ‘any actions’ necessary to remove hazardous substances from ‘property within a project area, whether the agency owns that property or not,’” Justice James McIntyre wrote for the court. “Nothing within the act requires a redevelopment agency to sustain ‘injury’ through the actual payment of costs in order to compel a responsible party to remediate contaminated property within its territory.” The property in question is the Campbell Shipyard and an adjacent parking lot, which the San Diego Unified Port District proposed to develop for a convention center hotel. San Diego Gas & Electric Co (SDG&E), previously operated a manufactured gas plant near the property. In 1995, the San Diego Regional Water Quality Control Board issued a cleanup and abatement order for the parking lot because of contaminated soil and groundwater. The San Diego Redevelopment Agency contended that SDG&E’s gas plant caused the contamination and, therefore, SDG&E was the “responsible party” for cleanup under the Polanco Act. But, apparently, no cleanup was forthcoming. In 2001, the Redevelopment Agency and the Port District signed a joint powers agreement (JPA) primarily for the purpose of cleaning up the site and identifying responsible parties. The agency then sent SDG&E a 60-day notice identifying the utility as a responsible party and asking how it would clean up the site. The utility did not respond, so in November 2002 the agency filed a lawsuit seeking to compel SDG&E to remove the hazardous substances. San Diego County Superior Court Judge Sheridan Reed ruled for SDG&E, finding that the Polanco Act did not authorize the agency’s lawsuit and that because the JPA immunized the agency from direct costs, the agency had no standing to file a lawsuit. The agency appealed, and a unanimous three-judge panel of the Fourth District, Division One, overturned the lower court. The appellate panel answered two questions: Does the Polanco Act allow redevelopment agencies to bring lawsuits to compel parties to remedy environmental contamination within a project area? If so, does the redevelopment agency have to show financial injury or damage to win the case? The answers were yes to the first question, and no to the second. A reading of the statute and of the legislative history supports the conclusion that the agency may file the lawsuit to compel action by SDG&E, the court ruled. SDG&E argued that a plain reading of the law and the legislative history supported the opposite conclusion, but the court ruled that the utility relied on its own interpretation and “provided no authority to support its assertion.” State law promotes redevelopment of blighted areas by remedying “injurious conditions through the employment of all appropriate means,” Justice McIntyre wrote, citing Health and Safety Code § 33037, subdivision (a). “The existence of hazardous waste on a property is considered to be a blight-causing condition that permits a redevelopment agency to use its authority under the act,” he wrote. Moreover, the Polanco Act gives the agency specific authority to take “any actions” to remove hazardous substances within a project area. “Thus, the plain language of the act allows a redevelopment agency to compel a responsible party through a civil action to remedy or remove hazardous substances,” McIntyre wrote. The court then dealt with the issue of whether the Redevelopment Agency had to show it had sustained injury — namely, spent money — because of the contamination before filing the lawsuit. SDG&E said yes, but the court said no and again pointed to the language of the statute. The court also rejected the argument that the agency-port district JPA — which assigned all costs to the port district — prevented the agency from suing SDG&E. The Polanco Act gives the agency the right to seek a court order, and a separate contract “does not affect this right,” the appellate panel ruled. The Case: , No. D041882, 03 C.D.O.S. 7955, 2003 DJDAR 9876. Filed August 28, 2003. The Lawyers: For the Redevelopment Agency: Linda Beresford, Foley & Lardner, (619) 234-6655. For SDG&E: C. Larry Davis, Sempra Energy, (619) 696-2000.

Two Oakland ordinances that crack down on shoddy motels have been upheld as constitutional by the Ninth U.S. Circuit Court of Appeals. The unanimous three-judge panel rejected contentions from motel owners that the ordinances were an unconstitutional taking, denied the owners their due process and equal protection rights, and were too vague. After years of wrestling with illegal activity in and around run-down motels, the Oakland City Council in 1999 adopted two ordinances aimed at improving the physical condition of motels and rooming houses. Ordinance No. 12136 required regular housekeeping, proper security and good record-keeping. Ordinance No. 12137 placed all legal, nonconforming motels into a new "deemed approved hotel program" that required all such motels to abide by the other ordinance or face misdemeanor prosecution and possible closure. The Hotel & Motel Association of Oakland and a number of motel owners challenged the new laws on constitutional grounds. District Court Judge Thelton Henderson upheld the ordinances. The motel owners appealed but got no further at the Ninth Circuit. The appellate panel ruled that the takings claim — based on motel owners being denied economically viable use of their land — was not ready for judicial review because the owners had never sought state administrative or judicial remedies. The court also rejected the argument that because they did not advance a legitimate state interest, the ordinances amounted to takings. "Based on legislative findings, the ordinances target an increasing concentration of illegal activity, unsanitary and dangerous conditions, and a variety of nuisances associated with problem hotels," Justice Margaret McKeown wrote. "The purpose is undeniably legitimate … and the means chosen substantially advances that purpose." The court quickly disposed of due process and equal protection claims because the city ordinances applied to all hostelries in town. As for the vagueness argument, the court held that the motel owners had to prove that there was no set of circumstances in which the ordinances would be valid. The motel owners failed that test. The Case: , No. 02-15220, 03 C.D.O.S. 8496, 2003 DJDAR 10613. Filed September 17, 2003. The Lawyers: For the association: Frank Weiser, (213) 384-6964. For the city: Arlene Rosen and Christopher Kee, city attorney's office, (510) 637-0360.

A state law that requires developers of housing within the coastal zone to provide low- and moderate-income units does not apply in instances where all of the actual dwelling units are built outside the zone. Constructing a road and utility lines in the coastal zone to serve new houses outside the zone is not enough to trigger the affordable housing requirement, the Second District Court of Appeal ruled. The decision was the second published ruling regarding a controversial project in the City of Los Angeles that is split by the coastal zone boundary. In a different case, the Second District held that the Coastal Commission cannot consider the environmental impacts to areas inside the coastal zone that result from development proposed outside the zone. That case, , (2003) 107 Cal.App. 4th 1030 (see , June 2003), has since been accepted for review by the state Supreme Court. The project that is causing the controversy is a 114-lot housing subdivision on 45-acres in Playa del Rey proposed by Catellus Residential Group. (Construction actually began this year.) The coastal zone boundary splits the parcel. Under the project that Los Angeles and the Coastal Commission ultimately approved, all of the houses would be built on 33 acres outside the coastal zone. Only a road, utilities and erosion control facilities would be built on a portion of the 12 acres inside the coastal zone. The groups Coalition of Concerned Communities and Spirit of the Sage Council sued the city. They contended that the environmental impact report was inadequate and that the city violated Government Code §§ 65590 and 65590.1 — statutes that require housing developers in the coastal zone to provide affordable units “where feasible” in the coastal zone or elsewhere in the city. Los Angeles County Superior Court Judge David Jaffe ruled for the city. The project opponents appealed but also lost at the First District, where a three-judge panel ruled 2-1 that the city did not violate the affordable housing provision. In the unpublished portion of its decision, the court unanimously upheld the EIR. At issue was the definition of “new housing developments constructed within the coastal zone” as used in Government Code § 65590, subdivision (d). The two-justice majority found the term to be “ambiguous,” while the dissenting justice did not. Writing for the court, Justice Richard Aldrich construed the key phrase to mean “new developments that include residential structures constructed within the coastal zone.” “Our construction,” Aldrich wrote, “gives effect to each word of the phrase in the context of both the phrase and the statute as a whole, the clear purpose of which is to require the provision of affordable housing based on activities within the coastal zone.” Thus, because Catellus proposed no actual homes inside the coastal zone, the affordable housing requirement did not apply, the court held. In his dissent, Justice Walter Croskey centered on the term “housing developments.” He wrote: “After repeated references to ‘dwelling units’ and ‘residential structure’ earlier in the statute, subdivision (d) pointedly does not state that the affordable housing requirement applies only if there are ‘new dwelling units constructed within the coastal zone or only if there are ‘new residential structures constructed in the coastal zone.’ Rather, the statute employs a term that encompasses not only dwelling units and residential structures but the whole of an improved tract of land: ‘housing developments.’” Croskey contended that if a “substantial part” of a housing development were constructed in the coastal zone, the affordable housing requirement was applicable. In this case, 2.3 acres of grading for a road, utilities and erosion control were a substantial part, he opined. But the two-judge majority said Croskey’s standard was “amorphous” and provided “no clear direction.” Besides, the majority said, 2.3 acres of grading in a 45-acre project is not a “substantial part” of the project. The Case: C , No. B149092, 03 C.D.O.S. 8215. Filed September 8, 2003. The Lawyers: For Concerned Communities: Craig Sherman, (619) 702-7892. For the city: Jack L. Brown, city attorney’s office, (213) 473-5502.

The last project in the re-creation of downtown Anaheim is scheduled to break ground before year’s end. The project will bring about 1,000 full-time residents to a district that has blossomed with private sector offices and government facilities during the last 25 years. While downtown Anaheim has become a job center for office workers, medical professionals and public employees, downtown is pretty well limited to an 8-to-5 schedule. The new project — about 490 loft apartments and for-sale townhouses — is expected to bring round-the-clock life to downtown, induce retail success, provide density needed for express bus transit, and offer needed housing. Anaheim’s downtown renewal is one of several ongoing in the cities of Orange County, which has long been considered only a collection of suburbs without centers. Different cities have taken different approaches to downtown redevelopment. Brea created one of the country’s first newfangled instant downtowns (see , January 1998). Santa Ana is building on a flourishing arts district. Fullerton has dedicated years and resources to retaining its core commercial area. Anaheim, meanwhile, wiped the slate clean and started over. Downtown was a tired, mostly industrial 100-acre slice of a 2,369-acre redevelopment project area that the city adopted in 1973. Over time, the city applied many items from the redevelopment tool box to downtown: The city acquired the entire 100 acres, demolished buildings, assembled parcels for sale to developers, built infrastructure, placed utility lines underground, erected parking structures and created pleasant streetscapes. A wave of area construction during the late 1970s and early 1980s was followed by an even bigger swell of building during late 1980s and early 1990s, when about 600,000 square feet of office space was built in 8- to 11-story towers, according to Community Development Deputy Director Brad Hobson. “From the commercial development perspective, it really was starting over with the downtown area,” he said. Today, about 13,800 people work in approximately 1 million square feet of downtown office space, which has a relatively low vacancy rate of about 7%. While the city started over with the commercial core, it has worked to preserve the historic residential neighborhoods right around downtown, known as the Anaheim Colony Historic District. Residents, the city and a consultant, The Planning Center, have worked on design guidelines intended to meld new and old. And those guidelines — plus extensive community input — have helped shape the final project in downtown. City officials and the CIM Group are planning for a 6-acre development of about 490 housing units and 60,000 square feet of retail development. Some of the structures will have a 1920s and 1930s feel to them, with brick warehouse characteristics. The bulk of the units will be loft-style apartments above ground-floor retail. Mary Anderson, CIM Group project director, said the city has “set the stage” for the development by providing some retail and extensive streetscape work, especially along the pedestrian-friendly Center Street Promenade, which splits the CIM project site. Downtown lacks multi-family housing, and the project is being designed for people attracted to an urban environment, whom Anderson described as mostly young professionals and empty nest couples. “It’s a very concentrated area, and this will provide pressure for retail services,” Anderson said. “It’s all about vitality.” Indeed, Hobson said the CIM project “gets that critical mass that we’ve been working toward all these years.” The city and CIM expect the retail component will fill with businesses that serve downtown residents and workers, creating more of a full-time urban environment. Anderson said restaurants, which are few downtown, have shown interest in the project. While the CIM project will help complete the downtown, the city and developers John Laing Homes and Brookfield Homes are working on about 800 units of infill housing in the adjacent historic district. Those units, which are higher density than the older homes, help create a better link between the well-preserved residential neighborhoods and the commercial core, said Brian Judd, project manager with The Planning Center. While the CIM project will essentially complete downtown redevelopment, the city will continue to receive tax increment through 2018. The larger district, which contains other areas still available for development, generated total revenues of $29.3 million, including $22.9 million of property tax increment, during the 2001-02 fiscal year, according to the State Controller’s Office. By far the largest expense was $10.7 million of debt service. Hobson believes downtown Anaheim is realizing success because it has stayed with the approach established during the 1970s. “Councils over the decades have really stuck with that overall strategy,” he said. “Projects come and go, but the overall vision, as long as it remains consistent, will pay off.” Downtown Anaheim’s largest employers Company: Employees SBC Communications 3,200 City of Anaheim 2,875 Alstyle Apparel 1,500 Anaheim Memorial Hospital 900 CKE Restaurants 700 Interstate Electronics 600 3-Day Blinds 550 RSI Home Products 550 Western Medical Center 400 Anaheim City School District 318 Contacts: Brad Hobson, City of Anaheim, (714) 765-4319. Mary Anderson, CIM Group, (323) 860-4929. Brian Judd, The Planning Center, (714) 966-9220.

An appellate court has rejected a psychiatric home developer’s challenge to water and sewer connection charges. The court held the developer should have presented its challenge when the governing board adopted its fee ordinance, not when the water district applied the fees to the project at hand. The controversy arose when California Psychiatric Transitions, Inc., proposed a 32-bed adult residential care facility in Merced County. The facility lies within the Delhi County Water District, which provides water and sewer services. The district classified the project as a rest home under its fee structure. Rest homes are charged at one-third of current connection fees per bed, meaning the base residential rate was multiplied by one-third the number of beds. Under this formula, the district charged the psychiatric home developer $45,333. The developer paid the fee but immediately filed a protest and then a lawsuit. Merced County Superior Court Judge William Ivey ruled for the district. California Psychiatric Transitions appealed, and a unanimous three-judge panel of the Fifth District Court of Appeal upheld the lower court. What became the central issue of the case was whether the developer was challenging the fee ordinance, or the district’s application of the fee to this project. Both sides agreed that if the developer was contesting the ordinance, the lawsuit was filed years too late. Government Code § 66013 permits local agencies to impose fees for “water and sewer connections” and “capacity charges.” Developers have 120 days to contest fees adopted under § 66013. Government Code § 66020 addresses “fees imposed on a development project,” which are essentially development impact fees. The imposition of fees under § 66020 can be contested within 180 days of the date the fees are levied. California Psychiatric Transitions relied on this code. But the Fifth District pointed to , (2001) 26 Cal.4th 1185, in which the state Supreme Court held that fees imposed in connection with a development project are not automatically “fees imposed on a development project” under § 66020. In the Delhi case, the fees could be considered capacity charges (which pay for capital improvements) or user fees, and are not necessarily related to property development, the court held. Thus, the court did not allow the challenge under § 66020. Furthermore, the court noted, California Psychiatric Transitions had argued that the water district’s only direct expense related to the project was an inspection that cost $37. So, the developer argued, the fee was not based on the district’s actual costs. The court held that this argument was not an attack on the specific fee that the water district assessed for a specific project. “The underlying claim by appellant is that respondent’s fee structure does not comply with the statutory mandate that connection fees reflect the estimated cost of labor and materials,” Presiding Justice Steven Vartabedian wrote for the court. “ his clearly is an attack on the ordinance.” The Case: , No. F040278, 03 C.D.O.S. 8195, 2003 DJDAR 10163. Filed September 5, 2003. The Lawyers: For California Psychiatric Transitions: Michael Ott, Erickson, Arbuthnot, Kilduff, Day & Lindstrom, (559) 449-2600. For the district: David Capron, (209) 722-8144.

Gov. Gray Davis closed out the 2003 legislative year by signing a three-bill package intended to settle the Colorado River water wars. Following the governor’s bill signings, the Imperial Irrigation District narrowly approved the plan, and Interior Secretary Gale Norton signed a new Colorado River water pact with Imperial and three other Southern California water agencies. The bills removed many of the obstacles that blocked an earlier plan for California to reduce gradually its use of “excess” Colorado River water and to transfer water from Imperial Irrigation District farms to San Diego County homes and businesses. The major sticking points concerned the health of the Salton Sea — which survives largely via agricultural runoff — and species that rely on the sea for habitat, and Imperial Irrigation District fears that it would get stuck with the bill for environmental mitigation. The bills that Davis signed are: • SB 277 (Moreno), which authorizes the Department of Water Resources to purchase up to 1.6 million acre-feet of water over 15 years from the Imperial Valley. The department will then sell the water to urban areas, generating an estimated $300 million for Salton Sea restoration. • SB 317 (Kuehl), which gives the Department of Fish and Game greater flexibility in dealing with “fully protected species,” a category outside the state and federal endangered species acts that covers some species reliant on the Salton Sea. The bill also directs the Resources Agency to prepare a preferred alternative for restoring the Salton Sea. • SB 654 (Machado), which establishes a joint powers authority to oversee mitigation of impacts on the Salton Sea that result from water transfers to San Diego. The bill also authorizes $50 million in Proposition 50 bond money for Salton Sea restoration, and $235 million in state funds to line the earthen All American and Coachella canals. Upon signing the bills, Davis declared, “Peace has broken out along the Colorado River.” The Metropolitan Water District, the Coachella Valley Water District and the San Diego County Water Authority all approved the multi-party deal shortly before Davis took action. The Imperial Irrigation District, which voted 3-2 against an earlier plan in December 2002 — causing the Interior Department to slash the state’s use of Colorado River water — voted 3-2 for the deal in early October. Imperial Director Bruce Kuhn, who switched his vote, conceded that he succumbed to pressure from Washington and Sacramento. Deal opponents in the Imperial Valley say the plan will require farmers to fallow their fields. Deal supporters contend conservation measures funded by the state and urban water users will keep farmers in business. Under the Quantification Settlement Agreement, the state has 14 years to reduce its use of Colorado River water from 5.3 million acre-feet annually to its longtime legal entitlement of 4.4 million acre-feet per year. Furthermore, the Imperial Irrigation District will sell to the San Diego County Water Authority up to 277,000 acre-feet of water — enough to meet much of the county’s growth needs for decades — for 45 to 75 years. Additionally, all parties agreed to drop existing lawsuits and to cooperate with a new, multistate-federal Colorado River alliance. While Davis praised the agreement and Norton called it “a historic turning point,” others remained skeptical. Environmentalists, led by the Center for Biological Diversity, complained about weak environmental provisions. And Mexican officials said that lining earthen canals would decrease groundwater recharge in the region, harming farmers south of the border. In other legislative matters the governor the following bills: • AB 514 (Kehoe), which gives urban areas supplied by the Central Valley Project 10 years to install water meters. • AB 944 (Steinberg), which permits property and business improvement districts to issue assessment bonds and levy assessments against business owners. • AB 1244 (Chu), which lets schools apply for modernization funds every 25 years, eliminating a one-time-only restriction. • AB 1410 (Wolk), which makes transit-oriented development a preferred use when public agencies are selling surplus land. • AB 1492 (Laird), which doubles penalties and creates new procedures for terminating Williamson Act farmland preservation contracts when there is a contract breach. • AB 1631 (Salinas), which ends the requirement that schools switch to a multi-track schedule if they convert a single-story structure to a multi-story building. • SB 68 (Alpert), which establishes the San Diego Bay Advisory Committee for Ecological Assessment and gives the panel until December 31, 2005, to prepare a report. • SB 114 (Torlakson), which prohibits all subsidies of vehicle dealerships and retail stores of at lest 75,000 square feet that relocate within the same market. • SB 352 (Escutia), which, with some exceptions, prohibits new schools within 500 feet of a freeway or busy road. • SB 445 (Kuehl), which requires nonprofit organizations to submit a management plan to the Coastal Commission and Coastal Conservancy before assuming operation of a public accessway to the coast. • SB 566 (Scott), which allows cities to place quarter- or half-percent sales tax increases before voters. Previously, cities needed special legislation for sales tax increases. The bill also doubles the permissible, cumulative sales tax override in a county to 2%. • SB 619 (Ducheny), which, among other things, prohibits local governments from requiring conditional use permits for a multi-family residential project of 100 units or less that is proposed in a multi-family zone. • SB 810 (Burton), which makes clear that regional water quality control boards — not the Department of Forestry and Fire Protection — have authority over water quality provisions in timber harvest plans. Davis the following bills: • AB 51 (Simitian), which would have required general plans to identify land use categories that provide for child care facilities. Davis called the legislation a mandate that the state could not afford. • AB 94 (Chu), which would have permitted cities and counties to increase property tax rates to pay for pensions approved by voters prior to Proposition 13. Davis blocked the bill because it allowed tax increases without voter consent. • AB 487 (Frommer), which would have required rental car companies to charge a 2.29% fee to fund state highway projects near airports. “I believe it is inappropriate to impose new fees purely for the benefit of one industry,” Davis said in his veto message. • AB 773 (Strickland), which would have expanded membership of the Ventura County Transportation Commission to include all 10 cities, rather than only three at a time. Davis contended the bill did not reflect a local consensus.

After more than four years of taking a timid approach to land use, the Davis administration is going out with a flurry. In the days just before and after the recall election, the administration issued detailed policy papers, reports and legal guidelines on everything from general plans to the California Environmental Quality Act to groundwater. Tal Finney, director of the Governor’s Office of Planning and Research, promised to produce even more policy documents before stepping down, including the first update in 25 years of the Environmental Goals and Policy Report. “I’ve been holding off for two years, and now it’s all coming out,” Finney said. “I really think California stands to gain for years to come from the work my staff has done in the last two years.” The flood of thick reports hit so quickly that many lobbyists and observers — even those who had contributed to reports — were unable to keep up. “I have all of these things in front of me that I need to read,” said Jim Metropulos, a lobbyist on water issues for the Sierra Club. While Governor-elect Arnold Schwarzenegger and his backers called for Davis to stop signing bills and quit making appointments, the incoming administration has been silent on the last-minute release of the land use and natural resource documents. Exactly why reports and guidelines have hit all at once is unclear. Some sources said it appeared Davis’s inner circle of advisors, who had reportedly bottled up many of the reports, either stopped paying attention or no longer cared to play it safe. Among the items that have come out are: • The first update of CEQA Guidelines since the Wilson administration • Expanded general plan guidelines • The five-year update of the state water plan • A comprehensive groundwater report issued by the Department of Water Resources (DWR) • Environmental justice recommendations from CalEPA • Water Desalination Task Force findings and recommendations • A report on “green buildings” prepared by the Sustainable Building Task Force. Other items that were reportedly ready to hit the street before Schwarzenegger takes office this month include the Environmental Goals and Policy Report, city incorporation guidelines for local agency incorporation commissions, an OPR environmental justice report, and a wetlands study by the State Water Resources Control Board. Finney said the Environmental Goals and Policy Report would be “the ultimate planners tool.” He said it will address the environment, the economy, land use planning, the regulatory system and more. By law, the Legislature is supposed to have the opportunity to comment on the document before it is complete, but the report had not been forwarded to lawmakers as of late October. Still, Finney vowed the report would become public, and he added, “I can’t imagine Governor Schwarzenegger’s people won’t be interested in carrying this out.” A document that did hit the streets after much delay was the CEQA Guidelines, prepared jointly by the Resources Agency and OPR. State officials had been working on an update since at least 2001, and draft updates with extensive Guideline amendments were circulated in 2002. Not all of those amendments made it into the update on which public comment closed October 6 — the day before the election. The revised Guidelines contain mostly technical, nonsubstantive changes, according to Finney. His office and the Resources Agency were working on more substantial changes, but administration officials do not have time to complete the work, Finney said. A quick reading suggests the biggest Guidelines changes cover determinations of significance of cumulative impacts, mandatory findings of significance, expanded requirements for recirculation of an EIR when last-minute information becomes available, more inducements to tier environmental documents off of a master EIR, and a new categorical exemption for habitat restoration projects of 5 acres or less. ( will have a more extensive review of the amendments in future editions.) The general plan guidelines, also an update of a Wilson-era document, contain a new section on environmental justice, an extensive discussion of public participation, a revised housing element section, guidance for water and energy elements, and recommendations for annual general plan implementation reports. The environmental justice material is not entirely new to planners, so OPR wrapped environmental justice into a broader discussion of sustainability, explained Brian Grattidge, an OPR senior planner. The environmental justice section explains the statutory framework, and then emphasizes the importance of public participation, good information and analysis, equitable distribution of public facilities and services, and preventing concentrations of industrial facilities from impacting schools and homes. The new public participation chapter provides more advice on the topic than previous editions of the guidelines and includes case studies. Much of the material may sound familiar to longtime planners, but the document makes the point that public participation is essential, said Julia Lave Johnston, of the California Research Bureau, who wrote the chapter. “It’s not a passing investment. It does make sense to do the groundwork,” she said. Indeed, Grattidge said an OPR survey found that public participation consumes 25% of a typical general plan budget. There is renewed interest in water and energy elements, which are optional under general plan law, Grattidge said. “What we’ve been seeing are energy strategic plans that are either regional or for a specific city. That’s something that could evolve into a general plan element, so we thought we should put the guidance out there,” he said. While updated CEQA and general plan guidelines are usually high on planners’ reading lists, a new groundwater study should get the attention of anyone in the land use business. Interim Water Resources Director Michael Spear called the document, known as California Groundwater, Bulletin 118 — Update 2003, “the first comprehensive report on groundwater in the state in almost three decades.” Besides noting that groundwater aquifers continue to be overdrafted by 1 million to 2 million acre-feet annually, the report repeatedly notes that development affects the quantity and quality of groundwater. “We really try to stress what a close link there is between land use decisions and potential benefits to groundwater if the decision is well thought out, or potential impacts if groundwater is not considered,” said John Woodling, principal geologist at DRW. Woodling said the groundwater report can be considered a subset of the state water plan, which is known as Bulletin 160. The department released the water plan for stakeholder comments in October, with a draft for public comment due out this month. The plan is similar to the Interior Department’s “Water 2025” framework in that both documents say we must make do with existing resources because additional storage facilities are unlikely to be built (see and , August 2003). The state plan estimates California could get roughly 5 million to 7 million acre-feet of water for the growing population through urban and agricultural efficiency measures, transfers from farms to cities, municipal water recycling, improved system operations, groundwater storage, and desalination of brackish groundwater and sea water. Those measures would be enough to quench the state’s thirst for the next 25 years and still keep agriculture thriving, the agency contends. The report has received mixed reviews. Farmers fear they will get squeezed too hard. Other people question whether the efficiencies the plan describes are realistic. Then there is the cost of implementing the measures. The plan does not contain detailed estimates but suggests the cost could be tens of billions of dollars. Another water report, this one from DWR’s Water Desalination Task Force, makes clear that desalinated water could be a cost-effective way to provide a modest amount of water — less than 10% of future needs. But the “overarching recommendation” of the report is that “desalination projects should be evaluated on a case-by-case basis.” Aside from water issues, CalEPA’s environmental justice recommendations appear to provide the state’s most comprehensive approach to the topic. The report — published on election day — emphasizes the need for public participation and for government agencies to respond to public input; the need for more scientific information, especially regarding cumulative impacts on communities; and integrating environmental justice into numerous government programs and planning efforts. Besides issuing a great deal of virtual and real paper, the Davis administration also completed some major bond-funded land purchases during its final weeks. The state spent $140 million on a deal that resulted in the state acquiring or preserving about 550 acres at the Ballona wetlands in Los Angeles (see , October 2003). The other high-profile purchase was the $135 million acquisition of the 2,800-acre Ahmanson Ranch in eastern Ventura County, where an unpopular 3,000-unit subdivision had been approved (see , December 2002). Smaller deals included the purchase of 691 acres of timberland in Humboldt County for $18.3 from Pacific Lumber, and acquisition of 731 acres along Nevada County’s South Yuba River for $3.4 million from Sierra Pacific Industries. Contacts: Tal Finney and Brian Grattidge, Office of Planning and Research, (916) 445-0613. John Woodling, Department of Water Resources, (916) 651-9291. CalEPA website: www.calepa.ca.gov DWR website: www.water.ca.gov OPR website: www.opr.ca.gov

Interest in smart growth varies by state and region, but many communities located in disparate parts of the country, whether or not they are growing rapidly, want to implement at least some aspects of smart growth. And far from being a tool only used to stem or redirect growth, smart growth is seen in the East as a way to stimulate redevelopment of existing towns. Those are early conclusions that can be drawn from Solimar Research Group’s work on a U.S. Environmental Protection Agency-funded project. Earlier this year, Solimar, Smart Growth America, the University of Southern California’s Community Development and Design Forum, and the University of Colorado’s Real Estate Center signed a contract with EPA to provide technical assistance to a small number of localities over the next three years. These are communities that have a commitment to smart growth but that are struggling with building broad-based support, implementation, and other issues. The eventual goal is to create a set of “smart growth implementation tools.” Late in September, our group solicited applications. We had no preconceived notions about how many we would receive or from where they would come. We were gratified by the results: 105 applications flooded in from 37 states. It is clear from the applications (see map) that smart growth is not an issue only in fast-growing states, and localized conditions can make smart growth a pressing issue. While Sunbelt states appear to be smart growth hotspots, the Rust Belt states of Rhode Island, New Jersey, Pennsylvania, Massachusetts, Michigan and Illinois also generated numerous applications. The only region not represented was the Northern Plains. About 45% of applications came from states growing slower than average — including one from West Virginia, which is hardly growing at all. California led the nation with 18 applications. Alaska and Hawaii each had one application. In our solicitation, we gave localities the opportunity to define the problems with which they need help. In the resulting applications, planners, elected officials, and citizens’ groups cumulatively listed 301 requests, which we then grouped into eight categories (see table). While these are not strictly survey results, they are an indication of smart growth implementation difficulties that practitioners face. Problems with zoning codes figured prominently at nearly 25% of the requests; growth management followed closely at 19%. Growth management was not the biggest issue in California, which has a statewide growth rate slightly more than the average of all applicants. Help with growth management issues (mainly sprawl, infill and farmland preservation) was frequently requested in states with relatively low 1990-2000 growth rates. Communities in West Virginia (0.8% growth rate), Pennsylvania (3.4%), Connecticut (3.6%), and Ohio (4.7%) all sought growth management advice. But localities in the fastest growing states – Arizona (40%), Colorado (36.6%) and Idaho (28.5%) — did not request any assistance with growth management. Several applications from slower growing parts of the county mirrored California concerns. The pressure of localized growth on infrastructure or the threat of being enveloped by expanding urban development from a neighboring community prompted a substantial number of requests for assistance. Interestingly, smart growth is not only seen as a way to stem growth, but to induce it. Some older communities in the Rust Belt seek to implement smart growth policies to make redevelopment of their aged areas more attractive to investors and residents. The development patterns dictated by most existing zoning ordinances prohibit the kind of places identified by researcher Richard Florida as being attractive to the sought-after “creative class.” In general, the Golden State generated much less than its share of requests for assistance in economic development and redevelopment, community consensus, and code implementation. Except for applications from one community each in California, Idaho, Kansas and Texas, economic revitalization and redevelopment requests were an East-of-the-Mississippi phenomenon. Illinois and Maryland had several each. Of 17 requests for help with public education, only one came from California, perhaps reflecting the state’s reliance on the California Environmental Quality Act process for public outreach. Requests from other states — regardless of whether the applicant locality is currently experiencing population loss or rapid growth — cited the public’s mistrust of density as a roadblock to adopting or implementing smart growth policies. A related theme repeated in many applications was that, while the public accepts smart growth in theory, the public is not so sure it wants to put the theory into practice on the lot next door. Mixed-use development apparently has stouter legs in California than elsewhere; our state generated nearly 40% of requests for assistance with mixed use. And true to stereotype, California proved to be more image-conscious: more than one-fifth of all requests for design assistance originated here.

The state Supreme Court has added two cases involving fees to its expanding list of land use controversies under review. In October, the court accepted a case involving impact fees from reuse of the Fort Ord Army base, and a challenge of planning and building fees charged by the City of Rancho Cucamonga. In the Fort Ord case, the Sixth District Court of Appeal ruled 2-1 that California State University was not required to fund off-site road and fire safety improvements needed to serve the CSU Monterey Bay campus (see , August 2003). The Fort Ord Reuse Authority and the City of Marina argued that the environmental impact report for the campus failed to recognize CSU’s responsibility for funding its fair share of infrastructure. A trial court ruled for the Reuse Authority and the city, concluding that the California Environmental Quality Act (CEQA) required the university to contribute to a fund for the mitigation of cumulative impacts. The appellate court overturned that decision, ruling that fees — not an interpretation of CEQA — was at issue. According to the state constitution, Government Code § 54999 and case law, traffic and fire safety improvements necessary for a public university are the responsibility of the locality, not the university, the court ruled. The case is , No. S117816. The second new case for the high court involves building permit and plan review fees for a 123-unit subdivision levied by Rancho Cucamonga (see , July 2003). The developer, Barratt American, argued that the city failed to complete an annual audit to determine that the fees did not exceed the cost of providing service, and that the fees were arbitrarily based on the value of construction. The developer also contended the fees were special taxes prohibited by Proposition 62. A trial court and the Fourth District Court of Appeal ruled for the city. The appellate court ruled that the lawsuit was filed after the statute of limitations had passed and relied on the wrong statutes. The court ruled that even though Barratt American filed a lawsuit contesting the fee schedule within the 180-day statute of limitations, the suit was still too late because the city only re-adopted existing fees, and did not increase fees or levy new ones. The case is , No. S117590. The state’s high court has five other land use cases under consideration, none of which have been set for oral argument yet. Those cases are: • , No. S113466, in which lower courts ruled the composition of the Coastal Commission is unconstitutional. • , No. S116081, concerning the Coastal Commission’s jurisdiction outside the coastal zone. • , No. S105078, over whether Proposition 218 should apply to a water connection fee and a fire suppression fee charged to developers. • , No. S109597, which involves the statute of limitations for contesting the county’s second-unit ordinance. • , No. S116870, regarding state enforcement of the Surface Mining and Reclamation Act.

The most famous definition of architecture comes from Vitruvius, the ancient Roman writer, who said the word applied to structures that are (in my inexpert translation) beautiful, useful and well-built. What has long impressed me about this unsurpassed definition is how intrinsically different these three qualities are from each other. In a building, beauty has little to do with either practicality or comfort. Similarly, good construction has no necessary relation to good looks or convenience, although these things can co-exist very happily. My standing joke is that a building, to be of interest, should fulfill at least one of the three criteria. As it turns out, surprisingly few new buildings meet even these lowered expectations. This admittedly pedantic lead-in may help explain why I find the Beverly Hills reverse-osmosis water treatment plant a fit topic for inaugural Innovations column. The plant is a public building that cost the city nothing to build (although it did entail other financial obligations). The water-filtration plant helps solve the city’s, and the region’s, long-term water-supply problems. The building supplies office space and even educational space — something very unusual for a workhorse piece of infrastructure like a water treatment plant. And, as a fine piece of architecture designed by Mehrdad Yazdani of Cannon Design Group, the building adds visual quality to the fast-gentrifying industrial area of Beverly Hills. The origins of the reverse-osmosis plant probably owe much to Government Code § 5956 that allows municipalities to contract with private firms to design, build and operate certain facilities. The design-build process, according to Beverly Hills Public Works Director Robert Beste gave the city more control because the city started with a fixed cost and asked the developer what it could achieve for the money. The more traditional route would be to design the project, and then asking builders to compete on a cost basis. The design-build process “allowed us to get a building that the community wanted, and yet the building performs a very technical function,” Beste said. The company that won the job was Earth Tech, a Long Beach-based division of Tyco International, the manufacturing and services conglomerate. Earth Tech agreed to build the $17 million plant at its own cost on land the city leases to Earth Tech for a dollar per year. The city supplied, at its cost, four new water wells, which are not reflected in the construction budget. The city also has an agreement to purchase the water Earth Tech treats. The plant currently processes 2.7 million gallons daily, or nearly a quarter of the city’s water needs. The water is not cheap. At $530 per acre foot, the locally purified groundwater is more expensive than the supply available from the Metropolitan Water District (MWD) at about $420 to $470 per acre-foot. Making the deal feasible is a subsidy from MWD of $250 per acre-foot. That hefty assistance reflects the Met’s goal of encouraging local water providers to develop their own supply. In public finance, the attraction of the deal is that the cost of the locally purified water remains stable while the cost of MWD water fluctuates with demand and could increase in the future as the region continues its startling growth. Intended to be “cost neutral” to the city, the plant could end up saving money for the city by eventually producing water more cheaply than it can be bought on the open market, according to Beste. After 20 years, the developer-operator will have recouped its costs and realized its profit, and the city will take possession of the plant (although the city has an option to buy the plant in as soon as five years). To sweeten the deal further for the developer, the city instructed Earth Tech to provide 30,000 square feet of office space to house the city’s public works department. Sergio Bazerevitsch, the project manager for Earth Tech, would not disclose the office lease rates, which I estimate are about $36 per square foot annually. The building also includes a public meeting room suitable for conducting environmental-education classes for school kids. Visitors can see the water-filtration plant, which, in reality, is little more than two giant steel barrels, connected to pipes, with no moving parts. Educational, perhaps, but hardly entertaining. Although Beverly Hills has a reputation for having a tough design-review process, architecture did not enter the picture until several city councilmen, in negotiations with the developer, suggested that the plant needed more design. Beverly Hills’ so-called industrial area is a thin ribbon of aging office buildings and warehouses tucked behind City Hall. Unlike most other industrial areas, the Beverly Hills site is highly visible. The area is one of the few in the city where creative tenants can find the funky, old buildings they prefer, and the area has slowly gentrified. Madonna’s independent record label, Maverick Records, has its offices in a former ice plant here. Yazdani’s design for the façade is exuberant and curvilinear, which may seems at odds with the big, dumb box immediately behind the fancy wrapper. The façade is not falsification, however: The architect has located the public rooms and the office space at the front of the building, where they belong. The prominent curved protrusion in the front of the façade is the public meeting hall, while office space is located behind the tower at right. The architect has talked about the possibility of a municipal band rehearsing in the public meeting room — certainly a first for a water-filtration plant. The point of architecture, as we suggested at the outset, is to do more than one thing at the same time. Beverly Hills’ mixed-use building is an example of how a single structure can respond to a multiplicity of requirements — financial, architectural, governmental and technical. On the Vitruvius scale, it gets three thumbs up.