The Davis administration has come and gone with little to show in the way of changes to the California Environmental Quality Act (CEQA) Guidelines, a document that carries the force of law and dictates how public agencies are supposed to implement CEQA. About 30 minor guideline changes were issued in September, but those changes could be put on hold or cancelled by the new Schwarzenegger administration. The revisions included about 30 minor changes that outgoing Resources Agency General Counsel Margret Kim described as "very neutral," favoring neither developers nor environmentalists. Maureen Gorsen, the incoming deputy secretary of the California Environmental Protection Agency who oversaw the last major revision of the CEQA Guidelines as Resources Agency general counsel under Governor Pete Wilson, offered an explanation for the Davis administration’s slow pace on the guidelines. "It’s not very rewarding work," she said. "You just don’t win friends and influence people by doing this kind of work." Gorsen said her predecessors from earlier administrations had warned her not to focus on CEQA Guidelines, telling her, "It’s not worth your time. You’ll only get headaches." Davis was known for his centrist, non-controversial approach to governing. Making decisions on CEQA Guidelines usually upsets someone, either environmentalists or developers. Gorsen also noted that the general counsel’s position in the Resources Agency was empty for two years after she left the post in 1999. Davis administration officials conducted at least two brainstorming sessions on the guidelines with such groups as the American Planning Association, the Sierra Club, and business groups, according to Terry Rivasplata, a senior environmental planner at Jones & Stokes in Sacramento. A number of potential guideline amendments were discussed at those meetings, but none of those proposals turned up in the new guidelines, said Rivasplata, who headed the Office of Planning and Research’s State Clearinghouse under Wilson. But at least two revisions proposed by Davis — to §§ 15065 and 15152 — are expected to streamline the CEQA process for builders and developers. "Governor Schwarzenegger may see it as something important for business purposes," Rivasplata said. That view was shared by Sacramento Attorney Jim Moose, who often represents agencies and developers. He called the Davis revisions "modest and moderate changes." Section 15065, which deals with mandatory findings of significance, has only a few wording changes. But those changes allow preparation of mitigated negative declarations rather than EIRs — a result could save development interests time and money. Under the proposed changes, an EIR would be required when "there is substantial evidence, in light of the whole record," that various events might occur. "The proposed changes are intended to clarify that when effective mitigation measures will be required as part of the project, Section 15065 will allow the adoption of a ," Rivasplata said. Added Gorsen: "You really have to be having an impact on a species or habitat" to be forced into preparing an EIR. The new guidelines also make changes to tiering, which is covered in § 15152. Tiering involves using the analysis of general matters in a broad, master EIR — such as an EIR prepared for a general plan — in EIRs for subsequent projects. Under the proposed revisions to § 15152, the lead agency will generally not need to examine environmental effects of a new project if the lead agency determines that the master EIR adequately analyzed those effects. Moose said this amendment provides a lead agency an incentive to adopt tight general plan standards as a way of avoiding expensive environmental reviews later. "The requirements … would give cities and counties an incentive to have stringent environmentally-protective general plan policies which would function as performance standards," he said. "Because if they had such performance standards under that language, they would then be able to say that by implementing those standards at the project level, they would have adequately addressed the impact and would not have to revisit that impact. That would make for a more streamlined project level analysis, and in some instances, might make the difference between an EIR and a negative declaration." Other changes to the guidelines include § 15088, which would require a lead agency to respond 10 days before certifying an EIR with written response to a public agency’s comments on a draft EIR. Environmental attorney Susan Brandt-Hawley suggested that this section be amended to give 10 days notice of all other responses to all other commenters. "Sometimes the Final EIR is available only hours before its certification, which defeats the whole point of the written comment responses and prejudices not only the interested public but also the lead agency decisionmakers that have inadequate time for review," Brandt-Hawley wrote in comments to the Resources Agency. Gorsen said she does not expect that the Schwarzenegger administration to tackle CEQA Guidelines. "There’s so many more sexy, glamorous things to do," Gorsen said. Rivasplata said the state’s lack of money and perpetual short staffing of Resources Agency attorneys could influence the new administration’s priorities. Under the law, the governor is supposed to issue new CEQA guideline changes every two years. The 30 guideline revisions issued by the Davis administration were open for public comment until late October. The Resources Agency has until mid- to late 2004 to complete its comments, make changes and then turn over the amendments to the Office of Administrative Law for final review. In August, the Davis administration did finalize changes to Wilson administration guidelines that had been the subject of a court challenge in , 103 Cal. App 4th 98 (2002). In that case, the court invalidated six substantial changes addressing cumulative impacts, thresholds of significance, tiering and probable future projects (see , January 2003). Those CEQA Guideline changes, which involved striking out portions to comply with the court ruling, were not subject to public comment and the usual adoption process. In the case, the court had upheld § 15332, which provides an exemption for infill projects of five acres or less if the project would not impact, traffic, noise, air or water quality. In the latest guideline revisions, § 15333 adds a 33rd categorical exemption for habitat restoration projects of five acres or less. Contacts: Jim Moose, Remy, Thomas & Moose, (916) 443-9017. Terry Rivasplata, Jones & Stokes, (916) 737-3000. Maureen Gorsen, Resources Agency, (916) 653-5656. Susan Brandt-Hawley, (707) 938-3908.

A federal appeals court has rejected two Sacramento-area cities’ challenge of Interior Department decisions that resulted in the development of an Indian casino. The U.S. Circuit Court of Appeal for the District of Columbia ruled that the Interior Department acted within the meaning of the Indian Gaming Regulatory Act (IGRA) and a statute that provided federal recognition to the United Auburn Indian Community. The cities of Roseville and Rocklin argued that the Interior Department could not provide land to the tribe for a casino unless the agency determined the casino would not be detrimental to surrounding communities and the agency received the consent of the governor. The Interior Department did not have to take those steps when it accepted into trust 49 acres along Highway 65 on the outskirts of Roseville and Rocklin. The tribe opened the Thunder Valley Casino — California’s largest — on the site earlier this year. In reaching its conclusion, the unanimous three-judge appellate panel read the federal legislation broadly. The court ruled that the IGRA and the law that established the United Auburn Indian Community encouraged economic development and tribal self-sufficiency, and that the cities’ narrow legal interpretation would thwart those goals. About 250 survivors of the Maidu and Meiwok Tribes comprise the Auburn Indian Band. Until 1967, the band, known as the Auburn Rancheria, had a 40-acre reservation in the Sierra Nevada foothills near Auburn. During the 1960s, as part of the then-federal policy of assimilating Indians, Congress withdrew recognition of the tribe and distributed the reservation lands to individuals. Congress restored the Auburn Band in 1994, when lawmakers passed the Auburn Indian Restoration Act. The law authorizes the secretary of the Interior to take into trust for the tribe the former reservation lands and other lands anywhere in Placer and neighboring counties. In 2000, the tribe asked the secretary to accept 49 acres of grasslands along Highway 65, several miles north of Interstate 80, so the tribe could build a casino. The cities of Roseville and Rocklin opposed the application, arguing that a casino would increase crime, interfere with planned residential development and harm the family-oriented nature of the area. The cities also argued that, under the IGRA, the secretary could not permit gambling on the site without determining there would be no negative impact on surrounding communities and getting the governor’s consent. Casinos proposed for lands acquired for Indians after the 1988 effective date of IGRA require those steps, the city contended. The Interior Department, however, ruled that the land was exempt from the IGRA’s conditions on sites acquired since 1988 because the site was "restoration lands." The cities sued but a federal district court agreed with the Interior Department’s application of the "restoration lands" exception. The cities appealed and the D.C. Circuit Court of Appeal upheld the lower court. The cities contended that restoration lands must be either territory in a former reservation or lands nearly identical to the former reservation. The cities said the casino site was 40 miles from the former rancheria site and that the valley site was unlike the wooded foothills where the rancheria had been located. The tribe and the federal government countered that "restoration" also encompassed "restitution," a notion accepted by the appellate court. "That a ‘restoration of lands’ could easily encompass new lands given to a restored tribe to re-establish its land base and compensate for historical wrongs is evident here, where much of the Auburn Tribe’s Rancheria is, as a practical matter, unavailable to it," Judge Judith Rogers wrote for the court. The IGRA "refers to the restoration of ‘lands,’ not to the restoration of a ‘reservation.’ The Maidu and Meiwok Tribes from which the Auburn Tribe descended once occupied much of central California. For the cities to now argue that the 49 acres are a windfall, as if the Tribe’s ancestors had never possessed any more, is ahistorical. Given the history of Indian tribes’ confinement to reservations, it is not reasonable to suppose that Congress intended ‘restoration’ to be strictly limited to land constituting a tribe’s reservation immediately before federal recognition was terminated." The cities argued that, had the tribe’s recognition not ended during the 1960s, the tribe, under the IGRA, would not now be allowed to gain access to the 49 acres for development of a casino. But the court ruled that what the cities considered an unfair benefit for the tribe was entirely fair. "Had the Auburn Tribe never been terminated, it would have had opportunities for development in the intervening years," the court ruled. "A ‘restoration of lands’ compensates the Tribe not only for what it lost by the act of termination, but also for opportunities lost in the interim." The IGRA and the 1994 law that restored federal recognition both promote tribal economic development and self-sufficiency, the court continued. "A reading allowing the Auburn Tribe to participate in that economic base furthers this purpose of IGRA while a reading that confines ‘restoration lands’ to the old reservation, the Rancheria, (most of which is now in the hands of homeowners, many non-Indian, and hence unavailable for development) would likely deny the Tribe this opportunity," Rogers wrote. The Case: , U.S. District of Columbia Circuit Court of Appeals No. 02-5277. Filed November 14, 2003 The Lawyers: For Roseville: William P. Horn, Birch, Horton, Bittner & Cherot, (202) 659-5800. For the United Auburn Indian Community: Seth P. Waxman, Wilmer, Cutler & Pickering, (202) 663-6800. For Norton: Elizabeth Ann Peterson, Department of Justice, (202) 514-2000.

An appellate court has decided to allow Caltrans to transfer 130 acres near Carmel for use as a state park despite a constitutional provision prohibiting the sale of Caltrans property for less than market value. The court ruled that a constitutional exception for property in the coastal zone applied because about 20% of the property lies within the zone. The land in question is in Hatton Canyon, a Monterey Pine forest supporting coastal habitat, diverse wildlife and public recreation. In 1956, Caltrans purchased 130 acres through Hatton Canyon for a potential realignment of Highway 1 east of Carmel. Forty-five years later, the Legislature passed AB 434. The law declared the 130 acres to be surplus property in the coastal zone and transferred the land to the Department of Parks and Recreation. A taxpayers group called Citizens for Hatton Canyon filed a lawsuit challenging the constitutionality of AB 434. The group contended the transfer violated the state constitution’s ban on disposing of Caltrans property for less than market value. Monterey County Superior Court Judge Michael Fields upheld the law. On appeal, so did a unanimous three-judge panel of the Sixth District Court of Appeal. Article XXVI of the state constitution bars the sale for less than market value of Caltrans property acquired with tax revenues. An exception, however, is found in article XIX, § 9, which allows below-market sales when the property is in the coastal zone and is sold for a park. In the Hatton Canyon case, only 24 acres of the 130 acres lie within the coastal zone. Citizens for Hatton Canyon argued that because only a portion of the property was within the coastal zone, the exception in article XIX, § 9, did not apply. In ruling against the taxpayers’ group, the appellate court first pointed to the Coastal Act and to the Park and Recreational Facilities Act of 1984. The Coastal Act — which seeks to enhance the coastal zone environment and maximize public access to the coast — underlies the article XIX, § 9, exception, Presiding Justice Conrad Rushing wrote for the court. The 1984 park law re-emphasizes this commitment to the coast and declares an intent to acquire, develop and restore areas for recreation and conservation. Assembly Bill 434 furthered these policies, the court held. "The Legislature’s objective, to promote the coastal habitat of Hatton Canyon by transferring the land to Parks, was entirely consistent with the strong public policy protected by article XIX, § 9, of the constitution," Rushing wrote. Furthermore, the court was bound to accept the Legislature’s legal interpretation that the phrase "in the coastal zone" applied to properties that are only partially in the coastal zone, the court held. " he legislative intent of protecting coastal properties for the public good is actually better served by this more expansive interpretation of the term ‘in the coastal zone,’" Rushing wrote. "Such an interpretation is also entirely consistent with the constitutional objective of elevating the protection of the coastal zone above the protection of the state’s highway trust fund." The Case: , No. H024449, 03 C.D.O.S. 9180, 2003 DJDAR 11520. Filed October 17, 2003. The Lawyers: For Citizens: Michael Masuda, Noland, Hamerly, Etienne & Hoss, (831) 424-1414. For Caltrans: Antonio Anziano, Caltrans, (415) 904-5700. For Department of Parks and Recreation: John Davidson, attorney general’s office, (415) 356-6365.

Voters in two Solano County cities on the edge of the Bay Area approved urban growth boundaries during the November election, providing two major victories for slow-growth advocates. Overall, however, local land use balloting in November demonstrated neither a slow-growth nor a pro-growth bent among voters. In some elections — including a vote on a complicated development agreement in Malibu and a referendum of an infill condominium project in Palo Alto — advocates on both sides of the slow/pro line claimed victory. Voters in Modesto may have the sent the most overtly mixed signals. Voters there approved by a two-to-one ratio an advisory measure that urges the Stanislaus County Board of Supervisors to direct all urban growth to incorporated cities. Yet the Modesto electorate also backed three measures that, taken together, let the city extend sewer service to nearly 900 acres of unincorporated territory where thousands of new houses could be built. The urban growth boundary elections were in Fairfield and Benicia. Fairfield backed an urban limit line that blocks development around Travis Air Force Base and in a portion of Green Valley, north of the Interstate 80/680 junction (see , September 2003). Meanwhile, nearly 70% voters in Benicia backed an urban growth boundary initiative that blocks development for 20 years in a hilly area northeast of town know as Sky Valley. Benicia voters also rejected a City Council-sponsored growth boundary alternative. "In both cases, they are establishing very clear lines for where the cities will grow and won’t grow," said Greenbelt Alliance Executive Director Tom Steinbach, whose organization backed the urban growth boundaries. "In both cases, the lines coincide with the general plan. … That makes planning possible." Greenbelt Alliance also backed a rezoning in Palo Alto that would allow a 61-unit condominium development with a small retail component on an acre of land that had been zoned for office and commercial use. Measure C was a referendum placed on ballots by project opponents, but 52% of voters backed the rezoning. Steinbach called the project a "good example of responsible, transit-oriented development." Other slow-growth and smart-growth advocates in Palo Alto also backed the project as a way to provide housing in a city where opposition to development often runs strong. Plenty of others, though, argued that the project was too much for the small parcel. After the election, neither side claimed a mandate. The election was also very close in Cotati, the smallest city in Sonoma County, where voters barely approved an exception to a 1997 initiative that blocked big-box retail stores. The vote was 1,047 to 1,013. Measure B allows stores larger than 43,000 square feet in a 52-acre area at the junction of Highways 101 and 116. A Lowe’s home improvement store has been proposed, and Lowe’s bankrolled the pro-B campaign. The tight contest in Cotati might be an indicator of how sharply people are split over big boxes. In March, at least three big-box measures are headed for the ballot, including a Wal-Mart-sponsored referendum on Contra Costa County’s anti-big box ordinance. Taxes for roads and transportation received a mixed reception in November. In San Francisco, three-quarters of voters backed a 30-year extension of a half-cent sales tax for transportation and approved a new plan for spending the money. The plan is heavy on public transit and includes a proposed subway. The only other road tax to pass was in the tiny city of Point Arena on the Mendocino coast. A half-cent sales tax for road maintenance barely received the two-thirds vote required. A similar half-cent sales tax for road maintenance in Lake County failed to cross the two-third threshold. In Petaluma, two-thirds of voters rejected a 5% utility users tax for road maintenance. In school district elections, voters approved 10 of 11 bonds on the November ballot, according to the Coalition for Adequate School Housing. The largest bonds were $295 million in San Francisco Unified and $120 million in Alameda County’s New Haven Unified, which serves Union City and part of Hayward. All but one of the elections was a "55% bond." The lone bond requiring a two-thirds vote, which comes with fewer conditions than a 55% bond, was in New Haven. The only bond to lose was a $13.1 million measure in northern Los Angeles County’s Acton-Agua Dulce Unified. Voters were divided on parcel taxes for schools, with five winning approval and six losing. One closely watched election was in Merced County’s Los Banos Unified, where the school officials proposed creation of a Mello-Roos district for the entire 600-square-mile school district. Under the proposal, residents would pay a $60 annual parcel tax, while builders of new homes would pay a $17,000 fee. Only 54% of Los Banos district voters backed the plan, short of the two-thirds required for passage. THE RESULTS Contra Costa County • San Ramon. Measure E. Zoning amendment to prohibit private heliports except those used for medical reasons or emergencies. No: 53.6% Lake County • Measure C. Half-cent sales tax solely for local road maintenance. Two-thirds vote required. No: 49.5% Los Angeles County • Hermosa Beach. Measure W. Advisory measure on building a beachfront bike path separate from the Strand. No: 63.9% • Malibu. Measure M. Complicated development agreement with Jerrold Perenchio’s Malibu Bay Company. The agreement would give the city 3 years to complete a $25 million purchase of the 20-acre "chili cook-off site" on the Pacific Coast Highway. If the city bought the land, Malibu Bay could develop various sites around town, and the city likely would try to build wastewater treatment plant under the 20-acre site and partially develop the surface. If the city failed to buy the chili cook-off site, Malibu Bay could build 155,000 square feet of commercial space there. No: 58.1% Mendocino County • Point Arena. Measure C . Half-cent sales tax for road maintenance. Two-thirds vote required. Yes: 69.1% Riverside County • Murrieta. Measure H. Initiative to rezone property at the city’s historic center from residential to public and institutional, and to require the city to immediately acquire the historic Murrieta Town Hall and contiguous property. The measure blocks a housing development. Yes: 61.5% • Norco. Measure J. A first-time city charter that includes a section on "protecting animal keeping rights, zoning rights and horse trails." Advocates contended the charter would preserve Norco’s semi-rural atmosphere. Yes: 58.0% • Riverside. Measure G. $20 million bond for new fire stations, training facilities and an emergency operations centers. It adds $12 per $100,000 property value to tax bills. The vote occurred while fires that destroyed more than 3,000 houses in Southern California were still burning. Two-thirds vote required. Yes: 70.9% San Bernardino County • Redlands. Measure N. Referendum of a city-county revenue sharing agreement for the 1,100-acre, unincorporated "Donut Hole." The agreement approved earlier this year gives the city 80% to 90% of sales tax revenue for 20 years in exchange for providing municipal services. After 20 years, the city gets all sales tax revenue from the Donut Hole. Without the agreement, the city would get no sales tax revenue. Slow-growth advocates who oppose development in the Donut Hole unless the city annexes the territory qualified the referendum for the ballot. Yes: 68.3% (referendum fails) San Francisco • Proposition K. Extension of the half-cent sales tax for transportation by 30 years and adoption of a new spending plan, which includes construction of a central subway. Two-thirds vote required. Yes: 74.8% San Mateo County • Half Moon Bay. Measure D. Amendment to the city’s local coastal plan and the Wavecrest Village draft specific plan to move a proposed middle school site from the proposed Wavecrest development to a Cabrillo Unified School District site near downtown. The Wavecrest project has been tied up politically for years. The school district opposed the "Build it Now" initiative because it would prohibit any new school west of Highway 1, because Wavecrest proponents have an approved development agreement with the city, and because the majority of district voters live outside the city limits and could not vote on Measure D. No: 54.7% • Millbrae. Measure E. Rezoning of 3 blocks of downtown to limit new restaurants, to prohibit adult businesses and head shops, and to require a conditional use permit for all new or expanded structures, and for most uses. Proponents said the measure would allow Millbrae to mimic neighboring Burlingame’s successful downtown. No: 57.4% • Portola Valley. Measure H. Referendum on rezoning of 3.57 acres of vacant land in the Nathhorst Triangle Area from commercial and office to residential. Old zoning allowed 23,000 square feet of commercial development. New zoning would allow up to 20 housing units. No: 51.8% (referendum fails) Santa Clara County • Palo Alto. Measure C. Referendum on the rezoning of 1 acre of vacant land from office and commercial to allow for development of 61 condominiums (including 10 affordable units), 1,900 square feet of retail space and an underground parking garage. Yes: 52.0% (referendum fails) Solano County • Benicia. Measure K. Urban growth boundary initiative that blocks development in the Sky Valley area for 20 years without voter approval. Yes: 69.5% • Benicia. Measure M. City Council-sponsored growth boundary alternative that could be modified without voter consent and which would allow some types of development in Sky Valley. No: 66.9% • Benicia. Measure O. $14 million bond for new police station. Two-thirds vote required. No: 49.8% • Fairfield. Measure L. Referendum on an urban growth boundary initiative, which the City Council adopted without an election earlier this year. The new boundary blocks development around Travis Air Force Base and in an area north of Interstate 80. Yes: 59.9%(referendum fails) Sonoma County • Cotati. Measure B. A general plan amendment and zoning ordinance amendment that carves an exception to a 1997 initiative that prohibits retail stores larger than 43,000 square feet. Measure B allows big boxes on 52 acres at the junction of Highway 101 and 116, where a Lowe’s has been proposed. Yes: 50.8% • Petaluma. Measure C. Charter amendment allowing imposition of a utility users tax to fund road repairs. No: 65.3% • Petaluma. Measure D. A 5% utility users tax to fund road repairs. No: 66.1% Stanislaus County • Modesto. Measure H. Advisory measure urging the county Board of Supervisor to direct all urban growth to cities. Yes: 67.5% • Modesto. Measure L. Extension of sewer service to 642 acres of unincorporated territory southwest of the city. Yes: 53.5% • Modesto. Measure M. Extension of sewer service to 80 acres of unincorporated territory north of the city. Yes: 62.3% • Modesto. Measure N. Extension of sewer service to 497 parcels on 153 acres in various infill areas. Yes: 62.5%

An appellate court has given the City of Alameda new life in a lawsuit over the city’s attempt to acquire railroad property for far less than market value. The First District Court of Appeal overturned a trial court ruling that a nearly 80-year-old contract between the city and the railroad owner was too vague to enforce. A unanimous three-judge panel ruled that the trial court should consider evidence developed after completion of the 1924 contract, and the appellate panel returned the lawsuit to the lower court for further proceedings. At issue in the litigation is property in Alameda that could be worth tens of millions of dollars. In 1924, the city sold a municipal belt line railroad for $30,000 to the Alameda Belt Line (ABL), which was a corporate venture of Western Pacific Railroad Company and The Atchison, Topeka and Santa Fe Railway Company. Paragraph 14 of the agreement gave the city the right to repurchase the belt line and "all extensions thereof" at a sum equal to ABL’s cost to acquire and improve the property. In 1999, the city learned that ABL was selling parcels of land and was in the process of selling a 22-acre rail storage yard for $18 million. So in November 1999, the city gave ABL notice that the city intended to exercise its right to repurchase the railroad and all extensions pursuant to the 1924 contract. Alameda Belt Line sued, contending that paragraph 14 was unenforceable because the term "all extensions thereof" did not sufficiently define the property that the city could repurchase. Alameda County Superior Court Judge Judith Ford accepted ABL’s argument and issued a summary judgment for ABL. The city appealed, and the First District overturned Judge Ford. The issue before the appellate court was whether evidence not included in the 1924 written contract could be considered in determining the property that the city may reacquire. The city argued that such evidence should be considered when interpreting the contract, and the First District agreed. The court noted that the 1924 contract required ABL to "keep an accurate account of the cost of additional investments and extensions and file a verified report thereof annually with the City Clerk." These reports identify the property constituting "extensions thereof" and should be considered as evidence, the court held. "‘The defense of uncertainty has validity only when the uncertainty or incompleteness of the contract prevents the court from knowing what to enforce,’" Justice Lawrence Stevens wrote, citing , (1986) 182 Cal.App.3d 492, 500. That situation apparently was not the case here. " he repurchase option in this case is somewhat unusual, since it sought to include not only the original railroad, but also property that was to be acquired in the future for ‘extensions thereof.’ However, this unusual feature does not necessarily make the 1924 agreement fatally uncertain," Justice Stevens wrote. "Only the original property, or new lands or other property acquired to provide ‘extensions’ of the operations of the original railroad, would seemingly be covered by the repurchase option. If ABL acquired other property for non-railroad purposes, such property would not fall within the option to repurchase." The First District ordered the appellate court to consider the additional evidence before determining whether or not the city could acquire the 22-acre rail storage yard under terms of the 1924 contract. The Case: , No. A099429, 03 C.D.O.S. 9637, 2003 DJDAR 12109. Filed November 4, 2003. The Lawyers: For Alameda Belt Line: Benjamin Salvaty, Hill, Farrar & Burrill, (213) 620-0460. For the city: Douglas Dang, Dang & Trachuk, (510) 832-8700.

A new attempt to build another airport to serve San Diego is underway, with proponents working toward an airport siting measure for the 2006 ballot. There may be no place in the United States that has studied potential airport locations more thoroughly than San Diego. Depending upon who is counting, between two dozen and 40 official, semi-official and academic studies, analyses and committee reports have presented findings and recommendations over the last three decades. All the while, Lindbergh Field — an undersized facility bordered by extensive urban development and the shoreline — remains the county’s lone commercial airport. The latest process is being run by the San Diego County Regional Airport Authority, an 11-month-old entity created by state legislation that removed the airport from control of the San Diego Unified Port District. In October, the nine member Airport Authority board chose seven finalist sites from a list of 32 possibilities. Five active military bases, a location in Imperial County, and Lindbergh Field made the cut. But in late November, the board also directed its staff to use a geographic information system to hunt for new, non-military site options. "The board feels uncomfortable with having predominately military sites," Chairman Joseph Craver explained. The finalist sites are: • A desert location off Interstate 8 in Imperial County • March Air Reserve Base in Riverside County • Marine Corps Air Station Miramar in San Diego • Marine Corps Air Station Miramar East in San Diego • Camp Pendleton • North Island Naval Air Station on Coronado Island • San Diego International Airport (Lindbergh Field) Failing to make the finalist cut were a proposed facility south of the border tied to Tijuana Rodriguez International Airport, Brown Field just north of the border where the city planned and later backed away from a major cargo airport, and a proposed airport floating in the ocean. "San Diego has studied the airport site selection subject for the last 40 years and has spent millions and millions of dollars, and, unfortunately, it has gone nowhere," Craver said. "This process is entirely different than anything that has been done in San Diego." After so many years of floundering, San Diego is full of skeptics about the latest process. Steven Erie, an urban studies and planning professor at University of California, San Diego, said the process is stacked in favor of Lindbergh Field expansion. The Airport Authority’s "public working group" that provided the initial list of 32 potential sites was merely a "fig leaf," said Erie, who was a member of the group. Six of the seven finalist sites make a Lindbergh Field expansion appear to be the only real option, Erie contended. Five of the sites are active military bases — including March, which is nearly 100 miles from downtown San Diego — and the non-military alternative is 85 miles east of downtown in the Imperial County desert, he pointed out. Former state legislator James Mills, who helped carry the 1962 legislation that created the Port District, agreed that the process is loaded in favor of Lindbergh Field expansion. The requirement of voter approval for a new site "is a stinger," he said. "You’ll never get the favorable vote because the opinion of the public is so divided," Mills contended. "If you take it to a vote, moving the airport loses." Both Erie and Mills said the process is loaded for Lindbergh Field because former state Sen. Steve Peace, who authored the 2002 legislation that put Lindbergh Field under control of the Airport Authority and gave the new agency power to site a new facility, does not want a new airport. Mills noted the Peace said publicly for years that he opposed any new airport, a stance from which he later backed away. "This all started because the Port District started to look for a new airport," Mills said. Peace’s legislation was a reaction, Mills said. Still, Erie and Mills concede that an expanded Lindbergh Field is probably the best answer politically. Proponents of the idea note that about 160 acres of industrial property and a small, but active, military base lie next to the airport and could be part of an expansion. But the Airport Authority’s Craver dismissed the notion that the process favors Lindbergh Field. He noted that even with improvements, Lindbergh Field is expected to reach its capacity in 15 years. With 600 acres and no possibility to configure a second runway that would allow simultaneous landings and takeoffs, Lindbergh Field cannot be the only airport, Craver insisted. At best, Lindbergh Field could complement a second airport, he said. Lindbergh Field is one of the smallest metropolitan airports in the United States. The Airport Authority is searching for a site of 2,800 to 3,000 acres for a new facility. Denver’s airport, one of the country’s newest, occupies about 35,000 acres, most of which are buffer zones. The military bases are proposed to be "enhanced joint-use" projects with extensive new facilities for civilians, although that approach could change if the planned 2005 round of base closures includes one of the five facilities. The Imperial County site could be served by high-speed rail and might be the only potential airport site with significant local support. Sunil Harman, director of airport system planning for the Airport Authority, said the seven finalist sites were selected based on economic feasibility, and potential impacts on people and the environment. The next phase of analysis will be more detailed and consider weather conditions, site constraints, geology, infrastructure availability, market demands and more, Harman said. In November, Congress passed a bill containing $10 million for the second phase of study. "This is a unique process in that it’s being dictated by state legislation," Harman said. That legislation requires voter consent by 2006. Exactly what the Airport Authority will place before voters is unknown. Harman said he expects voters will get multiple choices. Craver promised that airport supporters will run an aggressive political campaign to win voters’ approval for the best option. "There is no question that we will be successful," Craver said. "We all signed on to this process knowing that it is a political minefield. We all know everybody wants a solution but not in their backyards." Contacts: Joseph Craver, San Diego County Regional Airport Authority Board, (619) 299-9950. Sunil Harman, Airport Authority system planning, (619) 400-2461. Steven Erie, UC San Diego Department of Urban Studies and Planning, (858) 534-3083. Airport Authority website: www.san.org

An appellate court has published its opinion of what belongs in the administrative record for a California Environmental Quality Act (CEQA) lawsuit. The decision is the second opinion published in the second half of 2003 that addresses directly the contents of the administrative record under CEQA. The latest decision, in a case from Orange County, concerned the inclusion of 1,800 pages of documents related to an environmental impact report addendum that was never adopted. A unanimous three-judge panel ruled that the material did belong in the administrative record. A section in CEQA — specifically, Public Resources Code § 21167.6, subdivision (e) — "contemplates that the administrative record will include pretty much everything that ever came near a proposed development or to the agency’s compliance with CEQA in responding to that development," the court held. That section of CEQA has been around for years but has received little interpretation in court, said Jack Golden, a deputy county counsel for Orange County. The statute, which refers to internal notes and communications, and the court’s expansive interpretation could scare some public agencies, he noted. "At least we’ll know what the rules are going in now," Golden added. In this case, project opponents sought to block the 1,800 pages of material from inclusion in the administrative record. Orange County Superior Court Judge C. Robert Jameson agreed and eliminated the documents from the administrative record. The Fourth District overturned that decision. "We think we, as the administrative agency, should get to decide what is in the administrative record," Golden said. "As long as we follow the rules, neither the opponents nor the court should be able to veto that." The decision came in the second round of litigation surrounding a controversial project in Trabuco Canyon, an unincorporated area near an abbey and a monastery in the mountains east of Irvine. In 1997, the Orange County Planning Commission certified a final EIR for a proposed 705-unit mobile home development on 222 acres. The Vedanta Society of Southern California, which owns the monastery, appealed to the Board of Supervisors. When one supervisor recused himself, the board split 2-2 on the EIR. The county determined that the tie vote meant the EIR was approved. Over time, the project was downsized to 299 single-family houses and there was a considerable amount of legal wrangling. Eventually, the Fourth District ruled in , (2000) 84 Cal.App.4th 517 (see , January 2001), that the 2-2 vote was inadequate to certify the EIR. For the project to move forward under that ruling, the Board of Supervisors would either have to affirmatively vote for the EIR or order preparation of a new one. Supervisors chose the first option and only an addendum to the 1997 document was prepared. Supervisors subsequently changed their minds and a new EIR was written. The board adopted the new EIR for what had become a 293-unit development in November 2002. The Vedanta Society and two environmental groups brought a fresh CEQA lawsuit over the new EIR. In pursuing the latest lawsuit, project opponents sought to block from the administrative record all of the documents relating to the EIR addendum that supervisors never adopted. The trial court judge agreed, and the county appealed. The appellate court held first that the 299-unit project and the 293-unit project were "substantively the same ‘project.’" And because CEQA is an interactive process that can result in project modifications, there should "be a record of such modifications, not just those documents relating only to the finished product," Presiding Justice David Sills wrote for the court. "If a project has been modified in response to the CEQA process, the logical inference is that the ‘process works’ and the statute is being complied with," Sills continued. "To truncate review to just the project as specified in the ‘final’ EIR not only deprives the court of material bearing on changes made by the process itself, but presumptively loads the dice against project proponents who have much more to lose if anything in the record is held inadequate." Sills cited the other recently published case on this topic, , 110 Cal.App.4th 362 (see , September 2003). In , the Fifth District Court of Appeal overturned Merced County’s approval of a gravel mine because the court found the administrative record in a CEQA suit over the mine to be poorly organized and lacking documentation to support the county’s findings. Both the Fourth District and Deputy County Counsel Golden suggested that the Vedanta Society had learned a stalling tactic from Protect Our Water. "Realistically, we expect an appeal from whatever decision the trial court makes," Sills wrote. "That appeal is part of the rules of the games. But it is not within the rules to build into the legal process the probability of two appeals — one from a decision without the excluded materials, and one from the decision after the first one is ostensibly corrected." An attorney for the Vedanta Society did not return a phone call. The Fourth District sent the case back to the trial court for further proceedings on the merits. The Case: , No. G032843, 03 C.D.O.S. 9651, 2003 DJDAR 12130. Filed October 7, 2003. Ordered published November 5, 2003. The Lawyers: For the county: Jack Golden, county counsel’s office, (714) 834-3357. For Vedanta Society: David Hesseltine, Conner, Blake & Griffin, (949) 622-2600.

The largest development project along the newly extended 210 freeway at the foot of the San Gabriel Mountains is finally proceeding after years of planning and financial difficulty. However, all is not smooth sailing for the Colonies Crossroads project, as a November appellate court order halted grading on a portion of the site because of a fight over flood control facilities. The Fourth District Court of Appeal halted the grading after the San Bernardino County Flood Control District appealed a lower court decision in favor of Colonies Crossroads developers. A trial court ruled that the county no longer controlled easements on the property in Upland, which has been a gravel quarry, flood control basin and groundwater recharge site for decades. After the lower court issued its ruling in August, developers began recontouring flood control facilities and grading for a 1.1-million-square-foot shopping center. The court order halted any work on permanent flood control facilities, but not on interim facilities or the commercial development. However, the extensive grading has all been part of one construction project. The controversy over the flood basin threatens to overshadow the entirety of the development. As approved by the City of Upland, Colonies Crossroads will contain 1.1 million square feet of commercial space and 1,150 residential units, mostly single-family houses, on about 440 acres. Smack in the middle of the project are about 65 acres dedicated to flood control that are also intended to serve as open space for recreation and wildlife habitat. Included are about 25 acres of riparian habitat, a plan that pleased environmentalists. A hotel and several automobile dealerships could also be built, although that portion of the project remains uncertain. City officials favor the project because it will bring sales tax revenue and large new homes to town. During the late 1980s, developer William Lyon won approval for a mostly residential development on the site. The project, known as San Antonio Lakes, proposed nearly 1,500 housing units and a lake. At that time, an extension of the 210 freeway, although long proposed, was seen as a distant possibility, recalled Upland Community Development Director Jeff Bloom. Like many real estate interests, Lyon went bankrupt during the early 1990s and it lost the property. A group of investors calling themselves Colonies Crossroads, Inc., acquired the property about six years ago. By that time, the 20-mile extension of the 210 freeway from its transition to a boulevard in San Dimas to Interstate 15 in Rancho Cucamonga and beyond was becoming a reality. The freeway extension opened in late 2002 (see , January 2003). The freeway made the site more appealing for commercial uses, especially because the site includes a freeway interchange, say the developers and city officials. "We’re trying to get uses and qualities of development that are appropriate to the city," Bloom said. "We’ve lost over the years a lot of shopping to surrounding areas." Plus, he said, the state’s tenuous fiscal condition makes sales tax generation look more appealing than new housing. The new investors broke the project into two phases — a first phase of 305 single-family houses and a second phase of everything else. The first round of homes were intended to generate cash for the next round of development. Standard Pacific and KB Homes have actually built the houses, about 80% of which are complete. Most are 2,700 to 3,500 square feet and carry prices in the $400,000s and $500,000s. Sales have been brisk. The first part of the 105-acre commercial component is intended to be a big-box-style power center, with The Home Depot, Target and Kohl’s as major tenants. Some office space is also included. A "lifestyle center" with restaurants, possibly a movie theater and other features is proposed for the second round of commercial development. The remaining residential portion of the project is divided into 11 tracts, including one devoted to 350 high-end condominiums. Taylor Woodrow Homes has purchased all of the remaining single-family home entitlements. Since the 1980s, the project has drawn consistent opposition from residents of Rancho Cucamonga east of the site and residents of the unincorporated community of San Antonio Heights to the west. Residents in general have complained about the loss of views and open space, and the intrusion of a busy commercial district into a quiet residential area. More recently, litigation has been an obstacle to development. The Cucamonga County Water District and San Antonio Water Company sued over groundwater recharge. Those lawsuits were settled in August when developers and the water companies agreed on the design of new groundwater recharge pits. Earlier this year, Caltrans paid $8 million to settle a lawsuit filed by the developers, who complained that the design of the 210 freeway channeled more floodwater onto the Colonies Crossroad site. The controversy over flood control, however, did not end with the Caltrans’ payment. The county Flood Control District has owned easements on the property since the 1930s and over the years built a series of levies and basins. In 2001, the Colonies Crossroads developers argued that the district had abandoned those easements and that the district must pay for flood control facilities constructed as part of the development. The county contended the easements were still in place and pointed to a 1999 contract it signed with the developers in which the county abandoned its easements in Phase 1 of the project in exchange for certain flood control improvements. In August, San Bernardino County Superior Court Judge Peter Norell ruled for the developers. The cost of the new flood control basin and habitat area is estimated at about $25 million, while the land involved could be worth as much as $1 million an acre. Colonies managing co-partner Jeff Burum has threatened in the press to sue the county for $200 million for the improvements, the land and project delay. Burum did not return messages. "We believe the district has no obligation ," said Deputy County Counsel Mitchell Norton. "We believe what the Colonies should do is abide by the contract." Providing for flood control has always been part of the project’s conditions, Upland’s Bloom said. "The debate is less about what is going to be done than about who will pay for it and how much land will be dedicated to it," he said. Overall, though, Bloom said it has been exciting to see the project move into actual construction after so many years of speculation. Contacts: Jeff Bloom, City of Upland Community Development Department, (909) 931-4130. Mitchell Norton, San Bernardino County Counsel’s Office, (909) 387-5444. Colonies Crossroads website: Colonies Crossroads

Developers are building residences in California at the fastest pace in years. From recent economic reports suggesting a slowing economy, the construction might appear to be risky. But builders are banking on two irrefutable facts: There is no end in sight to the state's population growth, and all of those people need a place to live. According the Construction Industry Research Board (CIRP), 2003 is shaping up to be the best year since 1989 for homebuilders. If CIRB's estimates hold, the industry will erect 188,200 dwellings this year. That represents $37.5 billions in residential permit values across the state. Homebuilding began declining rapidly in 1990, foreshadowing a deep recession in the Golden State's economy. Homebuilding hit bottom during the middle of the 90s before starting a good run in 1997. The turnaround marked the first time that homebuilding became a leading indicator of economic growth, rather than a lagging one. If that pattern holds, the current, sniffling economy may not catch the flu. CIRB expects 2004 to mark another increase in housing starts - this a 5.2% jump. "This strength in homebuilding derives from several factors," said Ben Bartolotto, Research Director for CIRB. "Pent-up demand, record-low interest rates, and continued population growth all fuel the marketplace." Just like in the 1980s, home prices are also on the upward curve and have reached all-time highs in most of the state's sub-markets. And that is another factor that keeps builders building. Embedded in the overall growth in housing starts are some telling regional variations. Whereas all five regional markets tracked by the CIRB showed year-to-date increases in overall homebuilding for the first nine months of 2003, there were two exceptions by housing type: The Bay Area was the only market to log a decrease in single-family dwelling unit starts (-3.3%), while the Central Coast logged the only decrease in multi-family units (-21.5%). During the same period, the San Joaquin Valley marked the largest percentage increases in both single-family building (+26.6%) and in multi-family construction (+127.6%). In raw units, Riverside County built the most single-family houses (19,945) during the first nine months of 2003, nearly 2 1/2 times more houses than second place San Bernardino County. Los Angeles County built the largest numbers of multi-family dwellings (7,673). The figures suggest a number of continuing trends, namely, densification and infilling of the state's urban areas, and an increasing suburbanization of the inland valleys. But these simplistic generalizations mask the hybridization of California's housing market. The fact is that housing construction of every type is happening all over the place. If a city is "built-out" – planners' jargon for a city covered by urban uses and lacking land area on which to expand because of geographic conditions – then recycling of uses to more intensive, multi-family housing is occurring. Everything from high-rise condos in downtown San Diego to live-work loft apartments in Los Angeles and San Francisco are now part of the commercial homebuilding industry. Elsewhere, suburban housing tracts are spreading outward from farm towns in Fresno and Kern counties and formerly rural places. And in many areas, like San Jose and Sacramento, both urban infill/reuse and suburban growth on the fringes are happening at once. "There is no ignoring the single most important factor fueling housing construction, and that is the ever growing population of California," said Mark Geiberson of the California Association of Realtors. And that is perhaps the real point. While Governor Schwarzenegger blames Gray Davis for sinking the economy and vows to turn it around, one might wonder which economy Schwarzenegger is referring to. With housing construction projected to top $39 billion in 2004, thereby marking nine straight years of growth, and with population growth remaining a constant, maybe the economy is just fine. Housing Starts in California Year: Single-family / Multi-family / Total / Value in constant $ (billions) 1990: 103,819 / 60,494 / 164,313 / $28,213 1995: 68,689 / 16,604 / 85,293 / $17,257 2000: 105,595 / 42,945 / 148,540 / $30,179 2001: 106,902 / 41,855 / 148,757 / $30,171 2002: 123,865 / 43,896 / 167,761 / $33,998 2003 (estimate): 134,000 / 54,200 / 188,200 / $37,509 2004 (forecast): 138,500 / 59,500 / 198,000 / $39,072 Housing Start, first 3 quarters of 2003 Region: Single-family / Compared with 2002 / Multi-family / Compared with 2002 So. California: 49,793 / +16.3% / 23,396 / +27.6% SF Bay Area: 10,686 / -3.3% / 9,899 / +68.0% Sacramento Valley: 17,037 / +0.3% / 3,704 / +34.6% San Joaquin Valley: 20,245 / + 26.6% / 2,053 / +127.6% Central Coast: 3,764 / +16.7% / 991 / -21.5% Rest of state: 3,371 / + 15.3% / 472 / +60.5% CA totals: 104,896 / + 12.8% / 40,515 / +37.5%

A lawsuit contesting the environmental study for the Cal-Fed Bay-Delta project may proceed, the Ninth U.S. Circuit Court of Appeals has ruled. The three-judge appellate panel overturned a district court that ruled the lawsuit was filed too early and threw it out. The Ninth Circuit ruling means the lawsuit filed by the California Farm Bureau Federation and three farmers may go forward in federal court. The farmers contended that the combined environmental impact statement/environmental impact report (EIS/EIR) did not consider reasonable alternatives to the proposed conversion of farmland to environmental uses, failed to consider Cal-Fed’s impact on agricultural resources, and provided an inadequate analysis of mitigation options. The Farm Bureau and other Cal-Fed opponents praised the Ninth Circuit’s decision to overturn the lower court. The Ninth Circuit, however, did not consider the merits of the Farm Bureau’s arguments. Rather, the Ninth Circuit sent the case back to the district court for consideration of the merits. A similar case challenging the EIS/EIR under the California Environmental Quality Act is alive in state court. Cal-Fed is a cooperative undertaking involving 18 state and federal agencies responsible for the San Francisco Bay and Sacramento-San Joaquin Delta. The project seeks simultaneously to restore the Bay-Delta ecosystem and improve the quality of water available for urban uses. Farmers have feared for most of Cal-Fed’s nine years of existence that they would be the ultimate losers under the plan. The essential questions before the Ninth Circuit were whether the Farm Bureau and the three farmers had legal standing to file the lawsuit, and, if so, whether the lawsuit was ripe for judicial review under the National Environmental Policy Act. The Ninth Circuit ruled that the farmers had standing to bring the lawsuit because they could be injured by "the loss of affordable irrigation water for their agricultural lands." The plan selected by the EIS/EIR would convert some agricultural lands to other uses and reallocate the water elsewhere, the court noted. Because the individual farmers had standing, it did not matter whether the Farm Bureau had standing, the court determined. The court then addressed the issue of whether the EIS/EIR was ready — or "ripe" — for judicial review. District Court Judge Oliver Wanger ruled that the issues were not ripe because the EIS/EIR did not amount to a final agency action. The EIS/EIR and the Record of Decision (ROD) "simply outline a program" and review by the court would have to await a site-specific action, Wanger ruled. The Ninth Circuit rejected Wanger’s reasoning and pointed directly to the Cal-Fed Record of Decision, which stated the "EIS/EIR represents the culmination of the National Environmental Policy Act (NEPA) and California Environmental Quality Act (CEQA) processes. The ROD reflects a final selection of a long-term plan (preferred program alternative), which includes specific actions, to fix the Bay Delta, describes a strategy for implementing the plan, and identifies complementary actions the Cal-Fed agencies will pursue." "Therefore," wrote Ninth Circuit Judge Sidney Thomas, "because the ROD pre-determines the future through the selection of a long-term plan, to the exclusion of others which will not be among the available options at the implementation phase, it is ripe for review." Thomas cited , 956 F.2d 1508 (1992), in which the Ninth Circuit ruled that an EIS for a proposed wilderness designation was ripe for review because "a future challenge to a particular, site-specific action would lose much force once the overall plan has been approved — especially if the challenge were premised on the view that the overall plan grew out of erroneous assumptions." In both the current case and in Idaho Conservation League, the EIS set out a preferred program alternative to guide subsequent site-specific actions, Thomas noted. "As we noted in , ‘if the agency action only could be challenged at the site-specific development stage, the underlying programmatic authorization would forever escape review.’" The Ninth Circuit sent the Cal-Fed EIS/EIR back to the District Court for such a review. Additionally, the Ninth Circuit directed the District Court to consider whether state actions under Cal-Fed may be challenged in federal court, and directed the court to allow further discovery on the question of federal court jurisdiction over state defendants. The Case: , No. 02-15104, 03 C.D.O.S. 8177, 2003 DJDAR 10195. Filed September 8, 2003. The Lawyers: For Laub: Brenda Jahns Southwick, California Farm Bureau Federation (916) 561-5660. For Interior: Silva Quast, Department of Justice, (202) 514-2000. For the state: Gordon Burns, attorney general’s office, (916) 324-3081.

The wildfires of late October and early November – which some fire experts claim were the worst in the state’s history – have stimulated a whole new round of debate about whether and how to permit urban development in areas with naturally high fire risk. Local government officials throughout Southern California are responding to the conflagration with a variety of steps designed to increase firefighting capacity and possibly building standards. Meanwhile, state building and fire officials are also taking potentially important steps that could lead to stricter building and development standards. At the center of this debate, however, lies a fundamental question that always confronts California when development and nature collide: Avoidance, minimization, or mitigation? On the fire question – as with earthquake hazards, wetlands, and any number of other environmental issues – the scales are tilting pretty clearly toward mitigation. The choice on fire risk mirrors the choice embedded in wetlands regulations, but fire is a different kind of a natural resource consideration. Wetlands regulations provide the three choices of avoidance, minimization, and mitigation, and it is clear which alternative is preferable. The best alternative is to avoid any damage to wetlands altogether by channeling development elsewhere. Second-best is to minimize the damage through a sensitive design that takes out the smallest amount of wetlands possible. Last on this list – but still acceptable under some circumstances – is mitigation, which essentially means trying to make up for the loss of wetlands by taking steps to rebuild or enhance other wetlands on-site or elsewhere. California’s fire managers would like urban development to follow the same hierarchy in fire hazard areas. The California Department of Forestry and Fire Protection has long sought to persuade rural local governments to deny subdivisions in forests and other high fire-risk areas – thus adopting avoidance as the preferred strategy. The state’s fire managers claim that avoidance allows them to do their job better because the presence of structures in the vicinity of a fire forces firefighters to alter their entire strategy from controlling the burn to protecting the structures. But knowing that a hillside might burn at some time in the future is not the same as seeing a marsh full of birds. With fire safety, avoidance has always been a tough argument to win. Plus, people like to live in pretty places, and most pretty places in California are prone to fire. Additionally, rural county governments are loathe to restrict development in ways that appear anti-property rights. Finally – and perhaps more importantly in the 21st Century – California has become so populous that it is probably impossible to accommodate more growth without putting a lot of people in the path of fires. Over the last two decades, California’s population growth has driven new development deeper and deeper into natural wildlands previously undisturbed by human habitation. A generation or two ago, new development in California took place primarily on agricultural land where farmers had already altered many natural resources and natural hazards by leveling the terrain and removing native plants. This is still true in the Central Valley, but in our largest metropolitan areas, little farmland remains on which to build. In Southern California, the "urban-wildland interface" now encompasses a vast ring on the interior edge of the region stretching from the Antelope Valley through San Bernardino and Riverside Counties down to the rural area of eastern San Diego County, which was especially vulnerable in the recent fires. Given California’s continued population growth – somewhere in the vicinity of half a million people a year, with more than half of that in Southern California – it is inevitable that more and more people will have to live in close proximity to fire risk. In that sense, the urban-wildfire debate is not so much like wetlands as it is like earthquakes: You can’t live in California without taking the risk, so you have to manage the risk through mitigation measures. Over the past century, mitigating the risk of earthquake damage in California has been a remarkably successful enterprise. Buildings today are much larger – and yet, at the same time – much safer than they used to be. Indeed, one of the safest places to be during a massive earthquake might be in a brand-new skyscraper in downtown San Francisco. Our state regularly withstands major earthquakes – quakes that would kill tens of thousands of people elsewhere in the world – with very few deaths or injuries. Is it possible to foster that same kind of transformation with fire risk? Such a shift might seem unlikely at first, but it is clearly the direction that California’s public policy is moving. Shortly before the fires, then-Governor Gray Davis signed a bill carried by Assemblyman Juan Vargas (D-San Diego) requiring stricter building standards in high fire hazard areas. Experts say the standards are likely to require the use of fire-resistant materials for all exterior portions of a building, not just the roof. Better management of vegetation in residential areas is also on the rise; the recent fires have caused renewed interest in Oakland for a vegetation-management assessment district in high-fire-risk areas. The experience of the recent wildfires will likely give more fuel, so to speak, to the mitigation argument. The poster child for fire risk in the recent events was Scripps Ranch, the upscale development in San Diego where a lack of fire mitigation measures seemed to contribute to the destruction of hundreds of homes. By contrast, the poster child for fire safety was Stevenson Ranch near Santa Clarita, a classic new Southern California development that was punched into the urban-wildland interface. Built with a wide variety of mitigation measures — vegetation clearance surrounding the subdivision, eaves sealed with stucco, a system that allows firefighters to pump swimming-pool water — Stevenson Ranch suffered little damage even though a huge fire traveled for miles literally to the doorstep of Stevenson Ranch houses. Whether we like it or not, it appears that more houses will be built in high fire risk areas in California during the 21st Century. Mitigation may not be preferable to avoidance as a concept. But with 40 million Californians on the horizon, it may be the inevitable approach.

The administration of new Governor Arnold Schwarzenegger started coming together in November, but Schwarzenegger’s appointments were as difficult to peg as the new governor himself. Schwarzenegger has sprinkled his administration with moderates and Democrats, and he counterbalanced those appointments with business-oriented veterans of the Wilson administration. At the same time, not everyone has said yes to the new governor. He has had difficulty filling two key planning and development slots, Resources Agency secretary and Caltrans director. As went to press, most of Schwarzenegger’s key planning and development appointments were in places, including the following: • Environment Now President Terry Tamminen as secretary of the California Environmental Protection Agency – a controversial move but one that Schwarzenegger boxed in with two business-oriented subcabinet appointees. • Democrat Sunne Wright McPeak, head of the business-oriented Bay Area Council and a former Contra Costa County supervisor, as Business, Transportation, and Housing secretary. • Michael Chrisman, a Central Valley farmer, Southern California Edison official, and former Wilson political appointee, as Resources Agency secretary. Chrisman was reportedly Schwarzenegger’s third choice at least. As was headed to press, Schwarzenegger still had not named anyone to lead Caltrans and the Department of Housing and Community Development – both departments that will operate under McPeak’s leadership as BTH secretary — nor the Governor’s Office of Planning and Research. At least one potential Caltrans director has reportedly turned down that job, at least partially because the $120,000 annual salary would have been a substantial pay cut. Many regional transportation agencies pay far more than state department head jobs. The appointment of McPeak in particular matches what appears to be something of a "smart growth" approach within the new administration. A platform paper issued shortly before Schwarzenegger took office spoke of restoring urban environments. The paper stated, "Working with local officials, my administration will develop an infill incentives package to help local governments deal with the jobs/housing imbalance throughout the state and to spur smarter development by providing a mechanism for planners to identify and evaluate redevelopment of blighted and underutilized sites, allowing cities to accommodate mixed use, compact development and urban infill while curtailing urban sprawl." Epitomizing the mixed bag of appointments is Cal EPA. Schwarzenegger named veteran Santa Monica environmental activist Tamminen to the EPA secretary’s slot, apparently on the advice of his wife’s cousin, New York environmental activist Robert F. Kennedy Jr. Kennedy and Tamminen have worked together on the river, bay, and coast "keeper" watchdog efforts. Yet the governor appointed Wilson veterans James Branham as undersecretary and Maureen Gorsen as deputy secretary. As undersecretary for the Resources Agency during the Wilson years, Branham helped negotiate the state’s most expensive land purchase ever — acquisition of the Headwaters Forest in Humboldt County from Pacific Lumber for $480 million. After leaving state government, Branham became director of external relations for Pacific Lumber. Complaining of a revolving door in Sacramento, environmentalists called the appointment "outrageous." But logging industry representatives praised the move. Since leaving her post as general counsel for the Resources Agency in the Wilson administration, Gorsen has worked for the downtown Los Angeles firm of Weston, Benshoof, Rochefort, Rubalcava & MacCuish, where she did work for real estate and development interests. How — and whether — this team of three will mesh at Cal EPA has many people talking. "This does raise some eyebrows and prompt some concern," Sierra Club lobbyist Bill Allayaud told the Los Angeles Times. "Terry is in charge, but to have Branham right below him is a concern." McPeak’s appointment might be the most intriguing so far. A Bay Area Democrat, McPeak has been active in civic affairs since the 1970s. She served four terms on the Contra Costa County Board of Supervisors before leaving in 1993. More recently, she was executive director of the Bay Area Council, which has a reputation as one of the more progressive business advocacy groups in the country. "As someone who has worked on transportation, business and housing policy for most of my adult life, this was an opportunity too good to pass up," McPeak said in a written statement. Under McPeak’s leadership, the Bay Area Council helped establish the Bay Area Alliance for Sustainable Communities, which produced a "Compact for a Sustainable Bay Area" earlier this year. To implement the compact, the Bay Area Alliance launched the "regional livability footprint project" for the nine-county region. All of this work is based on what are known as the "three Es" of sustainable development — a prosperous economy, a healthy environment and social equity. Gary Binger, director of the Urban Land Institute’s California Smart Growth Initiative said he was surprised and "very pleased" by McPeak’s appointment. "She is a very strong advocate for housing and really understands how that issue works and what the challenges are," he said. Binger recalled that McPeak supported as a county supervisor a transit-oriented development proposed near the Pleasant Hill BART station at a time when such projects were not widely understood. In an editorial railing against an "elitist smart growth agenda," the said, "On balance it’s not completely clear what the incoming governor — or at least his eclectic group of aides — means when he talks about ‘smart growth.’" How far McPeak can carry any agenda is in question partly because of state budget constraints. Shortly before Thanksgiving, Schwarzenegger proposed that about half of $1.9 billion worth of mid-year spending reductions come from Business, Transportation and Housing Agency programs, including suspension of a number of in-progress transportation projects. The new administration has also had to work past some rejections. Schwarzenegger named Chrisman to head the Resources Agency after at least two other people turned down the job. Former state lawmaker and Secretary of State Bill Jones said no to the Resources Agency post after Republican Congressman David Dreier announced that he would not run for U.S. Sen. Barbara Boxer’s seat, clearing the way for a Jones campaign. And Jones was reportedly the second person to say no to the job. Chrisman’s appointment did not bring out strong opinions one way or the other. Environmentalists made clear their displeasure with the possibility naming of Jones as Resources secretary, but they were subdued in response to Chrisman’s appointment — even though Chrisman, on the surface, looks very much like Jones. Both are Republicans who own and help run family farms in the Central Valley, and Chrisman was Jones’s chief of staff when Jones was an Assemblyman. In carrying out numerous purchases and land and easements, the Davis administration’s Resources Agency made preservation of environmentally and politically sensitive open space a priority. Whether that approach will continue under Schwarzenegger is unclear. The new governor’s first budget proposal would halt new deals under the state’s Natural Heritage Preservation Tax Credit program administered by the Wildlife Conservation Board. The program grants tax credits to landowners for the donation of land and easements (see , March 2002).