In a way, San Diego might be the anti-Petaluma. Instead of laying off all the planners like Petaluma is doing, San Diego is investing heavily in long-term planning as an economic development strategy. I should say right up front that it's a bit unfair to compare a suburb of 57,000 people with a major city of 1.3 million. Still, the contrasting responses to difficult economic times is instructive. As we have reported, the Petaluma City Council decided in April to eliminate the planners and disband the Community Development Department. The city manager and councilmembers described the decision as a temporary move driven by ongoing budget deficits and a significant drop in development-related fees. "Advance planning is not something that I'm going to address at this moment," Petaluma City Manager John Brown told me. "I'm more concerned at this point in dealing with the current planning, making sure the people who come forward with projects are served." Essentially, Petaluma is going to process applications and abandon long-term planning until the economy gets better. Clearly, this was a difficult decision to make. San Diegans know all about local government fiscal problems. Back in 2003, it become public that the city had systematically underfunded its pension and health care obligations for years and was on the hook for more than $2 billion. Because prior years' financial statements did reflect the obligations, the city's bond rating fell and federal authorities opened investigations. Both the city manager and the mayor eventually resigned. That mess combined with the recent recession forced San Diego to eliminate about 8% of its 10,000-employee workforce. San Diego's Development Services Department, which handles minor development project reviews as well as plan check and building inspection, recently cut 28 out of about 450 position. However, the city has a separate City Planning & Community Investment agency, which not only oversees larger discretionary projects, but also long-range planning, economic development, redevelopment and facilities financing. This organizational structure reflects city leaders' belief that land use planning is directly related to economic growth. "We and the mayor have taken the attitude that this is a good time to plan so we're teed up when the economic recovery happens," explained Bill Anderson, who heads City Planning & Community Investment. "It is important for economic development to get the land uses and zoning in place." After years of planning, study and haggling, the San Diego City Council adopted the City of Villages general plan last year. Implementation of the general plan requires updating of all 35 community plans. In his proposed budget for the 2009-10 fiscal year, Mayor Jerry Sanders actually increased funding for community plan updates so that Anderson's department may work on 13 community plans simultaneously. Funding is coming from the city's general fund, redevelopment revenues, and grants from Caltrans and the San Diego Association of Governments, according to Anderson. "We're trying to focus on comprehensive community planning," said Anderson, who noted that both business and environment advocates have endorsed the effort. Everyone's hope is that having updated community plans will eliminate the painful battles that have marked major discretionary projects during recent years and that have made desired infill development quite difficult. Anderson declined to criticize Petaluma for narrowing the planning function down to application processing. He simply pointed out that issues surrounding quality of life and economic wellbeing never go away, no matter how little fee revenue a city is receiving. – Paul Shigley

State lawmakers have introduced an extraordinarily diverse collection of bills regarding land use planning, natural resources and infrastructure this year. While lawmakers' interest in affordable housing and redevelopment reform appears to have waned, the number of bills related to climate change or renewable energy has increased dramatically in 2009. Legislators have proposed at least five measures that would place water bonds before voters. Other measures are aimed at enhancing the health and changing the governance of the Sacramento-San Joaquin River Delta. Bills concerned with development in fire-prone areas have returned after failing last year, as has a measure to ease use of tax increment financing for infrastructure around transit stations. There is also a bill that would raise vehicle license fees to fund at least some of the regional planning required by last year's SB 375. Looming over everything, however, is the state's fiscal plight. Even if voters approve tax and spending measures during the May 19 special election – which appears unlikely – the state will probably face another significant budget deficit for the 2009-10 fiscal year. The fiscal picture should be clearer after Gov. Schwarzenegger provides the "May revise" toward the end of the month. "It looks like it's going to be another year when the state budget is going to be the center of discussion," said Daniel Carrigg, legislative director for the League of California Cities. For that reason, the League is not pursing an aggressive agenda in Sacramento this year, except to block any proposal to grab local revenues. "Now is not the time to add a bunch of new programs and require new fees," Carrigg said. "It seems like it's time to focus on the basics, which is to balance the budget and get those infrastructure dollars out there." The California Building Industry Association (CBIA) is sponsoring a revision of the Mitigation Fee Act and a bill that would extend the expiration date of tentative subdivision maps by six years. The industry's priority, however, is an extension of a $10,000 state tax credit for buyers of new homes, said CBIA Vice President Tim Coyle. The state budget deal approved in February included authorization for $100 million worth of new homebuyer tax credits. The state put a one-year time limit on the program, but it appears buyers will burn through the $100 million in less than five months, Coyle said. "It has produced the kind of response we were looking for. Traffic in new home subdivisions is up by incredible numbers," Coyle said. Environmentalists, meanwhile, are backing various climate change and water bills. The Planning and Conservation League (PCL), for example, is sponsoring two bills intended to promote water conservation and recycling as complementary measures to increasing water storage, as most water bonds propose. Hot Year For Climate Bills The Global Warming Solutions Act of 2006 (AB 32) and last year's SB 375 – which uses greenhouse gas emissions targets to force more regional and sustainable planning – marked turning points for land use policy and process. Such major changes naturally result in follow-up legislation. In general, Republican lawmakers are carrying bills to blunt the impact of AB 32 and SB 375, while Democrats have measures that build on the earlier legislation. Republican measures such as AB 118 (Logue), which would repeal AB 32 entirely, and SB 295 (Dutton), which would delay AB 32 implementation until the unemployment rate drops below 5.8% (about half of the March rate), are unlikely to gain much traction. On the Democratic side is SB 104 (Oropeza), which would permit the Air Resources Board to regulate any anthropogenic gas (a gas created by humans) under AB 32. Other Democratic legislation is aimed at protecting forests for their carbon sequestration properties. It is unclear how well Democratic measures will fare. The best odds probably belong to bills by Senate President Pro Tem Darrell Steinberg (D-Sacramento), the author of SB 375. Steinberg's SB 575 currently modifies San Diego County housing element deadlines but could serve as an omnibus SB 375 cleanup measure, while his SB 722 would place parameters on greenhouse gas emissions mitigation credits. Three other bills of more immediate concern to cities, counties and property owners address development of renewable energy facilities: AB 64, AB 45 and SB 560. Assembly Bill 64 by Assemblyman Paul Krekorian (D-Burbank) is a complex bill that, among other things, would create a Renewables Infrastructure Authority (RIA) that would identify suitable zones for renewable energy generation facilities, and then regulate their development. The measure would apparently eliminate local governments' ability to regulate wind energy facilities, the California Energy Commission's authority to regulate large solar facilities, and the Public Utilities Commission's (PUC) authority over transmission facilities. Assembly Bill 64, according to an analysis by the Assembly Committee on Utilities and Commerce, "provides RIA with siting authority for all renewable energy generation facilities greater than 5 megawatts. Any facility proposing to locate in a designated renewable energy designation zone will fall under the RIA's programmatic environmental impact report and can use the RIA's report to comply with CEQA." While AB 64 has received endorsement by renewable energy companies, environmentalists have lent only cautious support. Public and private utilities oppose the new regulatory arrangement, as does the PUC. Assembly Bill 45 by Assemblyman Sam Blakeslee (R-San Luis Obispo) would authorize cities and counties to regulate small wind energy systems. Senate Bill SB 560 by Roy Ashburn (R-Bakersfield) would provide greenhouse gas emissions credits under SB 375 to cities and counties that permit and site commercial wind, solar and biomass energy projects. Local Planning Lawmakers have introduced numerous bills that would affect city and county land use planning. One of the more unusual but potentially far-reaching bills is SB 518 by Sen. Alan Lowenthal (D-Long Beach), which is intended to reduce the amount of free parking funded by public entities or required of development. Sponsored by the Natural Resources Defense Council, the bill would prohibit the use of state funds directly or indirectly for subsidizing free parking, with a few exceptions. The bill also would require cities and counties to adopt and implement by 2012 a selection of parking reform measures, which could include reducing or eliminating minimum parking requirements, establishing maximum parking restrictions, and allowing shared parking facilities to meet commercial area needs. "My intent is not to discourage driving but to reduce subsidies that artificially encourage driving," said Lowenthal. "Free parking has a lot of negative consequences. It artificially encourages people to drive, resulting in more traffic congestion, greenhouse gases and other emissions. It spreads out land uses and makes public transit less feasible. It drives up the cost of development." Lowenthal acknowledged the bill is proposed at the same time the state has eliminated all funding for transit operations but said he is trying to restore the transit money. "Ultimately, I believe that reducing subsidies for parking will increase the market for and financial feasibility of expanded transit service," he said. On a different front is a CBIA bill, AB 1084 by Assemblyman Anthony Adams (R-Hesperia), that would revise the Mitigation Fee Act. The bill requires updated nexus studies that justify fees, allows anyone who is subject to a fee to demand that a local agency update its fee calculations, and eases the appeal process. The CBIA's Coyle said most jurisdictions have maintained the level of impact fees despite housing price drops of 40% or more, which makes construction of new units economically infeasible. "It's definitely not an in-your-face approach to reforming the law," Coyle said of AB 1084. "There's just got to be some give in this process of imposing these impact fees on projects. We can't stop an economic recovery in its tracks." Coyle said the bill could force some jurisdictions to reduce fees, but he noted a number of cities and counties have already begun to do so voluntarily in order to spur construction. The prospects for AB 1084 are uncertain, as Adams is a minority party member and he faces a Republican-sponsored recall effort because he voted for the budget package earlier this year. Back for another round this year are two fire and planning measures – Assembly Bill 666 by Assemblyman Dave Jones (D-Sacramento) and SB 505 by Sen. Christine Kehoe (D-San Diego). The Jones bill would prohibit counties from approving a subdivision map in a "state responsibility area" (SRA) or "very high fire hazard severity zone" unless the county makes findings that sufficient firefighting service is available and that the development provides adequate access. The Kehoe bill would require cities and counties with SRA or very high fire hazard severity zone territory to update their general plan safety elements to reflect recommendations by the State Board of Forestry and Fire Protection. The bill would also require the Governor's Office of Planning and Research to update its fire hazard planning guidelines and recommend new CEQA Guidelines that address fire hazard impacts. While Jones's bill is very similar to a measure vetoed last year, Kehoe's measure is less stringent than a failed 2008 bill that would have prohibited certain development. In general, fire agencies and firefighters back the bills, while property owners, developers and local governments oppose them. During a committee hearing in April, Kehoe said her bill was intended to encourage communication between entities that approve development and entities responsible for fighting fires in those developments – essentially, between counties and the California Department of Forestry and Fire Protection. "This bill is good planning. It's common sense. Frankly, it makes good fiscal sense," said Kehoe, who pointed out the state spends about $1 billion a year on fire suppression. "The whole goal here is to bring down the state's cost for fire suppression." But Sen. Sam Aanestad (R-Grass Valley), most of whose district would be affected by the legislation, said the real issue is forest management, not development. "We don't need to do any more talking. What we need to do is get rid of the fuels. … We don't need to be regulating community development." Kehoe's bill made it out of committee on a party line vote. Water, Water Everywhere A third consecutive year of less-than-average precipitation and growing concern over the health and reliability of the Bay Delta have resulted in a flood of water bills. Both Democratic and Republican lawmakers have introduced water bonds, which range from $9.8 billion to $15 billion apiece, and the governor has stated an interest in getting a water bond in front of voters. Some of the water bond bills are better defined that others, but most would allocate the money for a combination of increased storage, improved conveyance and environmental restoration. In addition, Democrats are carrying more than half a dozen bills that address Delta governance and management, and one of those bills could become a vehicle to block development of a peripheral canal that would divert fresh water away from the Delta. Other legislation deals more directly with the link between land use planning and water. Sponsored by the PCL, AB 1408 would permit developers to use water conservation measures to satisfy water supply requirements for large subdivisions and commercial projects. The bill also establishes a "water conservation mitigation fund" into which developers could pay fees to offset fully a project's estimated water use. The bill would set up a voluntary, not mandatory, process, noted Mindy McIntyre, PCL's water program manager. "It does help accommodate growth in an environmentally sustainable manner," she said. Another PCL bill, SB 565 (Pavley), mirrors a bill from the late 1980s that established a target for recycling and trash reduction that counties were forced to meet. In this case, SB 565 would mandate that 50% of wastewater now discharged into the ocean be recycled by 2030. The idea is to quadruple the amount of water now recycled to 2 million acre-feet annually, which is about the amount the State Water Project delivers on average, McIntyre said. The Pavley bill is receiving stiff resistance from the Association of California Water Agencies and the California Association of Sanitation Agencies, who argue that funding for treatment and distribution facilities needed to recycle more wastewater has been lacking for years. Lawmakers have until June 5 to move bills out of their house of origin. The first year of the two-year legislative session is scheduled to conclude September 11. Bills that do not pass by that deadline could return in 2010. Proposed Land Use Legislation For 2009 California Environmental Quality Act (CEQA) • AB 696 (Hagman). Allows a project applicant to resolve CEQA disputes with a lead agency before an arbitrator. • AB 1204 (Huber). Expands CEQA streamlining in last year's SB 375 to include commercial projects that comply with a sustainable communities strategy or alternative planning strategy. • AB 1321 (Eng). Creates the "advance infrastructure mitigation program" in the Natural Resources Agency to streamline environmental review and mitigation of infrastructure projects. • SB 476 (Correa). Modifies the exhaustion of administrative remedies requirement for CEQA litigation. Climate Change • AB 118 (Logue). Repeals AB 32, the Global Warming Solutions Act of 2006. • AB 376 (Nava), AB 1404 (De Leon), SB 722 (Steinberg). A three-bill package that addresses the use of greenhouse gas emissions mitigation credits. • AB 782 (Jeffries), AB 881 (Huffman), SB 560 (Ashburn). Three very different SB 375 follow-up bills. AB 782 exempts near-term transportation projects, and prohibits anyone from suing over approval of a sustainable communities strategy. AB 881 is specific to Sonoma County. SB 560 provides emissions credits to cities and counties that permit and site commercial wind, solar and biomass energy projects. • AB 1504 (Skinner) and SB 144 (Pavley). Two bills intended to preserve forests for their carbon sequestration qualities. The Assembly bill would require timber harvest plans to mitigate against the release of carbon dioxide. The Senate bill would permit the state to impose a fee on the conversion of timberlands to other uses, and permit the state to acquire forest conservation easements. • SB 104 (Oropeza). Adds any anthropogenic gas to the list of gases regulated under AB 32. • SB 295 (Dutton). Prohibits the Air Resources Board from implementing AB 32 until the state unemployment rate falls below 5.8%. • SB 391 (Liu). Requires the California Transportation Plan to address how the state will reach AB 32 emissions goals. • SB 575 (Steinberg). Provides SB 375 cleanup. This bill could evolve greatly. • SB 721 (Steinberg). Establishes a Climate Action Team to coordinate state policy. Economic Development • AB 507 (Arambula). Requires a project that receives assistance from the Infrastructure and Economic Development Bank (I-Bank) to meet certain economic development and land use criteria. • AB 1047 (V. Manuel Perez). Requires the I-Bank to establish a program to assist small and rural communities with obtaining local infrastructure financing. • SB 27 (Hancock). Prohibits the payment of incentives to a business that moves its situs address but does not move the physical location of the business. The bill is intended to prevent one local government from stealing another entity's sales tax, which is allocated based on situs address. The bill has already passed the Senate. Schwarzenegger vetoed a similar bill last year. Finance • ACA 9 (Huffman) and SCA 12 (Kehoe). These constitutional amendments ask voters to lower the approval threshold for local special taxes, property tax increases and bonds from two-thirds to 55%. • ACA 15 (Arambula). Lowers the approval threshold for transportation tax measures from two-thirds to 55%. • AB 338 (Ma). Expands from one-quarter mile to one-half mile the area around a transit station that may be part of an infrastructure financing district that uses tax increment financing. Also eliminates the requirement for voter approval. The governor vetoed a similar bill last year. • AB 878 (Caballero). Permits local governments to expand use of public-private partnerships to fund "revenue-generating infrastructure projects." • AB 1176 (Ammiano) Authorizes San Francisco to create an infrastructure financing district along the waterfront. A similar bill died in 2008. • AB 1192 (Audra Strickland). Prohibits a local government from using lease-purchase financing. Housing • AB 558 (Portantino). Authorizes a city to meet 10% of its regional housing needs assessment through a program that places foster youth in existing households. • AB 566 (Nava). Limits the conversion of mobile home parks to resident-owned subdivisions. • AB 570 (Arambula). Alters a Department of Housing and Community Development program so that housing trust funds in small and rural communities are better able to compete for state funding. The bill contains modest changes from legislation vetoed last year. • AB 761 (Charles Calderon). Limits local mobile home rent control measures. • SB 16 (Lowenthal). Allows low-income housing tax credits awarded between July 1, 2008 and January 1, 2010 to be refundable. The intent of this urgency legislation is to bring investors back to the market. • SB 326 (Tony Strickland). Suspends certain housing element update obligations until after completion of the 2010 census. The bill also requires a housing element to quantify existing and projected foreclosure rates, and specify how those rates impact housing needs. • SB 500 (Steinberg). Spot bill that will likely address creation of a permanent funding source for affordable housing development. • SB 595 (Cedillo). $1.5 billion bond to fund supportive housing projects for veterans. Local Planning • AB 333 (Fuentes). Extends the expiration date of tentative subdivision maps by 72 months. • AB 408 (Saldaña). Requires a city or county to notify the applicable regional water quality control board of a proposed general plan amendment or plan adoption. • AB 596 (Evans). Requires the Office of Planning and Research to develop model form-based zoning ordinances that reflect smart growth principles. • AB 666 (Jones). Requires a county to make specific findings regarding fire service availability and firefighting access before approving development in a state fire responsibility area or very high fire hazard severity zone. Similar legislation was vetoed last year. • AB 1084 (Adams). Revises the Mitigation Fee Act to require updated nexus studies, provide greater ability to appeal fees and permit developers to request annual recalculation of fees. • SB 194 (Florez). Requires that cities and counties receiving Proposition 84 funds adopt general plan goals and policies to promote environmental and social justice in disadvantaged, unincorporated communities. • SB 215 (Wiggins). Requires local agency formation commissions to consider sustainable communities strategies before acting on boundary changes. • SB 268 (Harmon). Requires alcohol and drug abuse recovery or treatment centers to comply with local zoning. • SB 310 (Ducheny). Permits a city, county or special district to develop a watershed improvement plan that addresses stormwater runoff. The building industry-sponsored bill would eliminate project-based regulation of runoff. • SB 406 (DeSaulnier). Permits metropolitan planning organizations and county transportation commissions to levy a $2 annual fee on vehicle registrations to fund regional and local blueprint planning. The bill also requires the governor's Strategic Growth Council to coordinate with a reconstituted Planning Advisory and Assistance Council within the Office of Planning and Research on implementing regional blueprints. • SB 505 (Kehoe). Requires cities and counties in "very high fire hazard severity zones" to adopt new general plan goals, policies and objectives to minimize wildfire risks to new development. Unlike legislation that failed in 2008, SB 505 would not prevent development that lacks sufficient fire protection. • SB 518 (Lowenthal). Prohibits the expenditure of state funds to subsidize parking, and requires local governments to select from a menu of parking policies, such as eliminating minimum parking requirements or setting maximum parking standards. • SB 737 (Negrete McLeod). Repeals an exemption permitting counties not to form a countywide airport land use commission. The bill would affect nine counties and is strongly opposed by the City of Watsonville and cities in San Bernardino County, which now have land use autonomy around airports. • SB 763 (Walters). Extends the expiration date of vesting tentative subdivision maps by 12 months. Redevelopment • AB 720 (Caballero). Permits a city or county that uses housing set-aside funding to rehabilitate a unit to count that unit toward meeting its fair share of low-, very low-, or extremely low-income housing. This bill may be substantially amended. • AB 1422 (Bass). Permits redevelopment agencies until 2013 to use money not in the housing set-aside fund to refinance or purchase subprime and nontraditional mortgages for income-eligible households, and to help lenders and developers in purchasing and selling vacant, foreclosed homes regardless of income levels. • SB 93 (Kehoe). Requires a redevelopment agency to make updated blight findings before funding a public works project within or outside a redevelopment project area, and to find there is no other reasonable means of financing the project. The bill is intended to prohibit redevelopment fund transfers, such as a $31 million transfer in San Diego from the Grantville area to fund a downtown trolley project. The California Redevelopment Association and numerous cities oppose the bill. • SB 430 (Dutton). Extends from 10 years to 20 years the time limit on San Bernardino County's Cedar Glen disaster recovery project area redevelopment plan (see CP&DR Redevelopment Watch , January 2007 ). • SB 477 (Florez). Permits a redevelopment agency to loan or grant money to the purchaser of low-income housing tax credits for the construction of low-income rental housing. • SB 530 (Dutton). Revises calculation of pass-through payments for certain redevelopment projects. Renewable Energy • AB 45 (Blakeslee). Authorizes cities and counties to regulate small wind energy systems. • AB 64 (Krekorian) and SB 14 (Simitian). The first bill requires utilities to get 50% of energy from renewable sources by 2035, while the second bill sets a standard of 33% by 2020. AB 64 also creates a Renewables Infrastructure Authority that would identify suitable zones for renewable energy generation and serve as lead agency for reviewing projects in the zones. • AB 1351 (Blakeslee). Permits utilities to count certain hydroelectric projects in their renewable energy portfolios. • SB 281 (Runner). Eases endangered species requirements for renewable energy projects in the Mojave and Colorado deserts until the state adopts a regional conservation plan, which is in process. Transportation • AB 113 (Portantino). Requires the state to sell properties acquired for extension of the 710 freeway through South Pasadena, a stalled project that has been on the drawing board for decades. • AB 744 (Torrico). Authorizes congestion pricing programs within the nine-county Bay Area. • AB 1135 (Skinner). Require motorists to report their odometer readings when renewing vehicle registrations. • AB 1375 (Galgiani). Establishes the Department of High-Speed Trains, which would assume responsibility for the proposed high-speed rail system. • SB 205 (Hancock). Authorizes transportation planning agencies to place on the ballot for majority approval a measure raising vehicle registrations by up to $10 to fund transportation projects and programs. • SB 409 (Ducheny). Creates the Department of Railroads and prohibits any other state agency from obtaining federal funds for intercity rail, high-speed rail or freight rail projects. The Public Utilities Commission opposes the bill. Water • AB 13 (Salas), AB 39 (Huffman), SB 12 (Simitian), SB 229 (Pavley) SBs 457, 458 and 808 (all Wolk). This legislation all concerns the Sacramento-San Joaquin River Delta. AB 13 establishes a conservancy to oversee a Delta sustainability program. AB 39 requires the state to implement the Delta Vision Blue Ribbon Task Force's strategic plan (see CP&DR , February 2009 ). SB 12 creates a Delta Council to adopt a comprehensive Delta ecosystem and water plan. SB 229 reconstitutes the California Water Commission and authorizes it to oversee Delta governance. SB 457 creates the Delta Stewardship Council to adopt a new Delta plan. SB 458 creates a conservancy specifically to promote public access and protect agricultural and cultural resources. SB 808 attempts to protect beneficial uses of water in the Delta and could be a tool to block a proposed peripheral canal. • AB 49 (Feuer). Requires California to achieve a 20% reduction in urban water use by 2020. • AB 55 (Jeffries). Establishes new criteria for nonresidential projects that require a water supply assessment. Only projects that would use at least as much water as a 500-unit housing project would require an assessment under AB 55. • AB 300 (Caballero). Requires a city or county to consider voluntary demand management measures when reviewing a development project's water supply assessment. • AB 1187 (Huffman), SB 371 (Cogdill), SB 456 (Wolk), SB 735 (Steinberg), and SB 301 (Florez). The first four of these bills would place a $10 billion water bond before voters. The Florez bill proposes a $15 billion water bond. • AB 1408 (Krekorian). Establishes a "water conservation mitigation fund," into which subdivision developers would pay fees for conservation projects that fully offset the new subdivision's projected water use. The offsets could be used to meet water supply requirements for large projects. • SB 565 (Pavley). Requires that 50% of wastewater now discharged into the ocean be recycled by 2030. Williamson Act • AB 494 (Caballero). Permits a parcel split of up to 10 acres on land covered by a Williamson Act contract in order to accommodate construction of farmworker housing. • AB 512 (Yamada). Makes horse breeding and training facilities compatible uses under the Williamson Act. • SB 170 (Florez). Permits a Indian tribal government to cancel a Williamson Act contract so the tribe may develop a cultural center, housing or infrastructure on the agricultural land. The Santa Ynez Band of Chumash Indians, which operates a casino and wants to expand its reservation in Santa Barbara County, is the bill sponsor. • SB 715 (Wolk). Strengthens various Williamson Act provisions. Other • AB 102 (Smyth). Establishes the Santa Susana State Park Advisory Committee to recommend whether the 2,800-acre Rocketdyne property in eastern Ventura County should become a state park. For many years, the site was used to test rocket engines and nuclear reactors. Lawmakers have sought to ensure the property is not developed for residential uses. • AB 109 (Feuer). Imposes a moratorium until 2012 on new digital advertising displays visible from any highway. • AB 210 (Hayashi). Clarifies how cities may adopt their own green building standards. • AB 397 (Jeffries). Converts the South Coast Air Quality Management District board from an appointed to an elected body. • AB 444 (Caballero). Clarifies that nonprofit entities may accept and disburse public funds for management of mitigation lands and conservation easements held by land trusts or special districts. • SB 690 (Leno). Permits the removal of illegal outdoor advertising displays and displays that were permitted but have been modified in a way that makes them illegal.

Planning is Janus-faced, looking backward to the past as well as forward to the day after tomorrow. We do city planning in anticipation of some golden moment in the future when all our goals blossom in a coordinated way, just as we intended, like that last big blast of multiple fireworks on the Fourth of July. In reality, as most of us know, we build the foundations of the future on the messiness of the past. For every firework in the future, there is a trash can from the past waiting to be emptied. A principal kind of "messiness" in the Eastern Neighborhoods of San Francisco – comprising East SOMA, the Mission, Potrero Hill and the Central Waterfront – has been conversion of industrial property into market-rate housing. This activity raged in the early part of the decade during the tech bubble, followed by the housing bubble. The people known as the Knowledge Sector – the Planning Department's euphemism for middle-class professionals with high-paying jobs – are consuming the industrial land as quickly as a San Francisco resident with the munchies would devour a flourless chocolate cake, topped with a dollop of crème fraiche , at a chi-chi new restaurant in the Mission District. Large-scale industrial conversions, of course, displace the small businesses in the "PRD" category, meaning production, repair and distribution. These small businesses represent 95% of local businesses and provide one-third of local jobs. Since 1990, nearly half the industrial sites in the Eastern Neighborhoods have disappeared. It is dispiriting to watch a city with a jobs deficit stand by as its places of commerce are destroyed by a poison cocktail of zoning and real estate economics. The South-of-Market gentrification wave did create much-needed new housing in San Francisco, which must build at least 2,700 units, of which 40% must be affordable, to meet its annual housing quota. Unfortunately, much of the new housing in the Eastern Neighborhoods was market rate, except in areas where zoning specifically banned market-rate units. Most of that newer housing is out of reach for many existing residents in the Eastern Neighborhoods, who fall in the low- and moderate-income demographic. All this is prelude to the predicament that the San Francisco Planning Department calls its "twin dilemmas": How best to preserve local industrial jobs, while finding affordable housing opportunities amid the crowded streets of East San Francisco? Although the four general plan amendments that compose the Eastern Neighborhoods Community Plans are complex, comprehensive documents, it appears that the basic strategy has been to safeguard the surviving industrial sites for business, while providing both incentives and requirements for new housing. In many cases, new housing must contain at least some low- and moderate-rate units. The new zoning designation MU-R requires residential units to be included in all new projects. For the Sixth Street Neighborhood Commuter Transit District in East SOMA, planners envision neighborhood-serving businesses at street level with housing above. Although the four Eastern Neighborhood plans do not say it in an inflammatory way, the long-awaited planning documents essentially are declaring, "Gentrification stops here." Market-rate housing must be accompanied by low- and moderate-income units in most cases; only affordable projects can use new zoning incentives, such as parking forgiveness. Improvements in local bus and Muni streetcar service, ideally, will make life without cars, and housing without parking, even more tenable. As they exist today, neighborhoods like the Mission seem models of pedestrian-oriented urbanism, with parks, access to mass transit and many neighborhood businesses, such as neighborhood markets, that stay open at night. But can planning fix after the fact the mess made by a runaway housing market? More to the point, perhaps, has the City hit upon the best possible compromise between homebuilding and preserving industry? I'm not smart enough to know. And even though there are many people who understand these admirable new amendments to the San Francisco general plan, I suspect nobody else does, either. I suspect it will be nearly impossible to undo the damage; the proverbial horses of industrial land conversion are already out of the barn. As planners, we do the best we can with the conditions at hand. The plan's nonresidential recommendations, for example, include city assistance to new and existing businesses in the area and business training for workers. But the damage has already been done. I don't understand how the City can reasonably expect to sustain industry after allowing so much of its industrial inventory to be removed. The best thing to do, at least, is to change the zoning so no more industrial land can be converted to residential. Industrial zoning would have the effect of lowering the land values, making the property affordable to industrial users while removing landowners' irresistible temptation to sell out to developers. The Eastern Neighborhoods plans do not, and perhaps cannot, draw an absolute line against conversion, however. And without such a line, real estate market forces rather than public policy will have the last word. San Francisco's Eastern Neighborhoods provide most of the city's industrial lands (above). Based on recent trends and new land use plans, San Francisco will lose about 46% of it's industrial land base. It is axiomatic that real estate speculation moves quickly, while planning moves slowly. The East San Francisco plans, which the City Council approved in January, would have ideally been enacted 10 or 20 years ago. As with many other issues in life, we don't pay attention to problems until they become acute, by which time our options are limited. The Eastern Neighborhoods Community Plans are excellent examples of multi-disciplinary planning, and I predict they will yield some good results. Communities that need affordable housing will get more of those units. The situation, though, looks somewhat less sanguine for industrial job growth in these same neighborhoods. The San Francisco Planning Department has lost the advantage of timing. The doctor has identified the disease and the cure, but the patient may be too sick to recover. The future is built on the foundations of the past, however, and this is probably the best that public policy can do.

The Governor's Office of Planning and Research has completed proposed California Environmental Quality Act Guidelines for greenhouse gas emissions. The guidelines now move to the Natural Resources Agency, which intends to invite additional comment and conduct at least two public hearings this summer before releasing a final version. The proposed guidelines urge lead agencies to quantify greenhouse gas (GHG) emissions from projects whenever possible, and not to limit analysis to emissions related to traffic or energy use. The guidelines, however, do permit use of qualitative factors and performance standards when determining whether GHG emissions constitute a significant impact on the environment, a proposal that environmentalists consider a large loophole. The guidelines strongly suggest that lead agencies use the tiering approach to analyzing GHG emissions, starting with a programmatic analysis that may be incorporated into project-level environmental reviews. The guidelines contain extensive details on using a greenhouse gas reduction plan as a programmatic document. But even compliance with a greenhouse gas reduction plan does not provide an automatic pass, as Guideline 15183.5(b)(2) states, "If there is substantial evidence that the effects of a particular project may be cumulatively considerable notwithstanding the project's compliance with the specified requirements in the greenhouse gas reduction plan, an EIR must be prepared for the project." The guidelines also make clear that a project's compliance with regional blueprint plans, such as the sustainable communities strategies mandated by SB 375, does not mean a lead agency may automatically determine a project's cumulative impact is less than significant. Revisions to the guidelines' Appendix F analysis on energy are included "to clarify that EIRs must specifically consider a project's energy use and efficiency potential," OPR Director Cynthia Bryant wrote to Natural Resources Agency Secretary Mike Chrisman in a transmittal letter. However, an earlier version's reference to a "lifecycle" energy analysis has been struck because that term may create confusion, Bryant wrote. Also proposed for amendment is the Appendix G checklist, although not in the fashion OPR proposed earlier this year. The earlier version eliminated use of level of service (LOS) as a measure for determining the significance of traffic and transportation impacts – a change that drew extensive opposition from practitioners and the development community. The revised proposal continues to permit a lead agency to use LOS and other methodologies to assess traffic impacts. The Office of Planning and Research appeared to incorporate a number of changes in response to the comments on the preliminary draft guidelines released in January. Although some commenters suggested entirely new approaches to analyzing GHG emissions, OPR stuck with traditional CEQA practices whenever possible, explained Chris Calfee, Natural Resources Agency special counsel. "Every effort was made to stay true to existing CEQA requirements," Calfee said. And in her letter to Chrisman, Bryant portrayed the proposals as "relatively modest changes" to the existing guidelines. Senate Bill 97 from 2007 requires OPR to complete proposed guidelines related to GHG analysis and mitigation by July 1, and requires Natural Resources to adopt revised guidelines by January 1, 2010 (see CP&DR Environment Watch , October 2007 ). The Office of Planning and Research beat its deadline by more than two months. Still, Natural Resources will have to move extraordinarily quickly to adopt the changes by year's end, as CEQA Guidelines revisions often take several years to complete. Calfee credited OPR for doing "a great deal of work on the front end." Environmentalists and environmental justice advocates appear underwhelmed by the proposed guidelines. Matt Vespa, senior attorney for the Center for Biological Diversity in San Francisco, pointed to what he considers two major flaws: The guidelines do not address how agencies should examine how climate change will impact projects, and the guidelines permit use of state and regional benefits as a basis for overriding local emissions impacts. Vespa's organization was one of several that urged OPR to include a discussion of likely impacts from climate change, such as rising sea level and increased flooding, more wildfires and dwindling water resources. He pointed out that the attorney general's office recently released a Q&A guidance document that says lead agencies should address hazards such as sea level rise and wildfires. "I think it's a lack of political will on their part," Vespa said of OPR. "I have seen a number of EIRs that look to OPR's silence on this issue as a reason not to do anything." Environmental justice advocates are joining Vespa's second point regarding a guideline that permits a lead agency, when adopting a statement of overriding considerations because the impact of emissions cannot be mitigated, to consider state and regional benefits from the project. The concern is that poor communities may bear the burden of projects that benefit the state economically. Environmentalists are further questioning the potential use of qualitative analyses or performance-base standards for determining GHG significance. "When people have diabetes, they need exact measurements, not a general description of their condition," the Planning and Conservation League wrote in email correspondence. "The same applies in the fight against global warming; if you don't measure it precisely and address each unit of pollution, we won't solve the problem." On a different note, Kent Norton, of Michael Brandman Associates in San Bernardino and president of the Association of Environmental Professionals, questioned proposed guideline language on cumulative impacts. As proposed, the guidelines appear to require a list of every potential project, which is not realistic and which could aid "obstructionist" project opponents, he said. On the issue of climate change's impact on projects, Norton agreed practitioners could use guidance because project opponents are already raising questions about fire risk and water supply when they comment on environmental impact reports. Norton added that the changes to Appendix F ensure that it will no longer be optional for lead agencies to address energy usage and conservation measures. Overall, Norton endorsed OPR's efforts. "I wouldn't say we are displeased at this point. But I think most people recognize this is going to be an iterative process, and this is a good start," he said. After Natural Resources publishes the proposed guidelines formally, a 45-day public comment will commence. The agency will likely conduct public hearings toward the end of that period in Los Angeles and in Sacramento, according to Calfee. If Natural Resources changes the proposed guidelines, another round of public comment will open. The final decision on the guidelines rests with Chrisman. Contacts: Chris Calfee, Natural Resources Agency, (916) 653-5227. Kent Norton, Association of Environmental Professionals, (909) 884-2255. Matt Vespa, Center for Biological Diversity, (415) 436-9682. Proposed guidelines: http://opr.ca.gov/index.php?a=ceqa/index.html

The City of Los Angeles's closely watched density bonus ordinance has been struck down because the city did not subject the ordinance to California Environmental Quality Act (CEQA) review. Los Angeles County Superior Court Judge Thomas McKnew Jr. ruled that a fair argument could be made "that portions of the ordinance which go beyond the minimum standards set by state law" may have a significant adverse impact and, therefore, must undergo environmental review. The city ordinance adopted in early 2008 was based on SB 1818 from 2004, a measure that modified the density bonus law to increase bonuses and require local governments to grant development concessions if a project contains a certain percentage of affordable housing (see CP&DR , September 2004 ). While the state law permits density bonuses of up to 35%, the Los Angeles ordinance allows bonuses of up to 300% in some instances. At the behest of Jane Usher, who until last fall chaired the city's Planning Commission, a group called Environmental And Housing Coalition Los Angeles sued the city. The group contended the ordinance would encourage developers to demolish existing affordable units and replace them with much denser, market-rate projects that contain fewer affordable units than existed before. The group argued in court the city violated CEQA by declaring the ordinance exempt from environmental review. McKnew agreed and threw out the portions of the ordinance exceeding SB 1818 mandates, as well as any project approvals based on the invalidated portions of the ordinance. The case is Environmental and Housing Coalition Los Angeles v. City of Los Angeles , No. BS114338.

It was a sunny summer Saturday the first time I stepped onto the K Street mall in downtown Sacramento. The place was deserted. That was 25 years ago, and Sacramento is still trying to figure out the K Street mall. Sacramento Bee reporter Ryan Lillis recently interviewed me for a Sunday story about the K Street mall. I told him what I tell everybody: A successful downtown requires all entities – the city/redevelopment agency, property owners, merchants, civic institutions – to invest time, money and creativity. Those same entities need to invest in a large dose of patience. It took Pasadena 20 years to transform Old Town from a mediocre office district that closed at 5 p.m. into a thriving urban environment. Redwood City was at the downtown revitalization game for more than 30 years before realizing substantial success. More than 40 years have passed since Sacramento closed K Street to automobiles, which in retrospect was the first of many missteps by the city, property owners and merchants. Still, K Street appears to edge ever-closer to success. A streetscape program is planned this year, new restaurants have opened, a long-anticipated nightclub is finally under construction in the old Woolworth's building, and a problematic property owner is out of the picture.   What K Street and all of downtown really need are thousands of additional residents. Prospects for very much market-rate residential development, however, appear extremely dim in the near term. And then there's the rail yards redevelopment project on the north edge of downtown. Construction of infrastructure for the rail yards project began last week. I've said for some time and still believe that development on the 240-acre the rail yards site could cannibalize the rest of downtown. That doesn't mean rail yards redevelopment is a bad idea. But it could mean K Street has another few decades of gloom ahead. – Paul Shigley

SB 375 is now law, but another year and a half will pass before the California Air Resources Board adopts the follow-up numerical regional targets for greenhouse gas emissions reductions. This puts California's cities and counties in a pretty big bind: How can they adopt plans for the future that will conform with the climate change law if they don't know what standard they are going to have to comply with? The new law explicitly states that local plans do not have to conform with SB 375's provisions. But the practical matter is that because transportation funding and housing elements will be tied to SB 375, the locals don't want to get crosswise with their regional planning agencies as they revise old land use plans and adopt new ones. Cities and counties also are trying to handicap SB 375 at the same time that they are trying to comply with the rapidly shifting requirements for dealing with greenhouse gas emissions under the California Environmental Quality Act. This issue is especially tricky in the six-county region overseen by the Southern California Association of Governments (SCAG), where SB 375 implementation might be downshifted to the subregional councils of government in some instances. In the case of SCAG, not only are the locals unclear as to what the SB 375 targets will be; they don't know who will be creating the plan to reach those targets. Meanwhile, in Sacramento, the Regional Targets Advisory Committee (RTAC) – the group charged to come up with the reduction targets and assign them to the regions – is still at the beginning stages of the process. The RTAC is a 19-member advisory group to the California Air Resources Board (CARB) created under the law to make recommendations on the regional targets. The committee's members include technical experts such as Jerry Walters of Fehr & Peers, regional planning chiefs such as Steve Heminger of the Metropolitan Planning Commission and Mike McKeever of the Sacramento Area Council of Governments, social equity advocates such as academic Manuel Pastor and lawyer Mike Rawson, and political heavyweights such as former Assemblyman Richard Katz. At a meeting on April 7, the RTAC heard a basic land use/transportation briefing from UC Berkeley planning professor Elizabeth Deakin and began to debate some pretty basic questions – for example, whether targets should be regional or per-capita, and whether targets should be "expressed as an absolute percent reduction or an absolute reduction." At its subsequent meeting on April 22, the RTAC continued this discussion but went on to some other pretty basic items. The committee debated whether there should be a uniform statewide target that is doled out to the regions or a different target for each region. The committee also discussed how trips between regions should be accounted for in regional targets. These are all important threshold questions, but they suggest that the RTAC is only starting down a very long road. Under the law, CARB is not required to adopt the regional targets until the fall of 2010. The regional planning agencies then have a year or so to craft a kind of regional plan – known as a "Sustainable Communities Strategy" – that attempts to meet those targets. So, by the end of 2011, the first regional plans will be in place under SB 375. The League of California Cities succeeded in getting language inserted into SB 375 saying that the law does not usurp any land use authority from local governments. But the law does link the regional plans to both transportation funding and to the housing element process. So most local governments are taking the SB 375 process seriously and struggling with how to conform to plans that don't yet exist. It's a particular problem for cities attempting general plan updates during the next couple of years. All cities undertaking general plan overhauls are heavily focused on the greenhouse gas issue because of the emerging CEQA requirements. That means they are likely to focus mostly on inventorying emissions and imposing "feasible mitigation measures" to minimize future emissions growth. That approach may keep Attorney General Jerry Brown happy for the moment, but it is not the same thing as actually cutting emissions, which is likely to be a requirement for at least some regions under SB 375. The new law is based on the assumption that at least some greenhouse gas emissions reductions will have to come from changed land use patterns, which presumably means an overall reduction in vehicle miles traveled. Localities in California have virtually no experience in trying to figure out how to reduce vehicle miles traveled (VMT). In fact, VMT has never been part of the analytical framework, which has tended to focus on the number of vehicle trips and levels of congestion. So local governments face an analytical problem: how to work VMT into the way they forecast the future of their community. Beyond that, however, local planners face the problem of not knowing what their VMT reduction target is. Will they have a target? If so, do they have to pay close attention to the target? On housing elements, the state gives targets to the regional planning agencies and then the regional agencies break those targets down by local jurisdiction. Under SB 375, however, there is no requirement for the regions to give targets to the locals and there is no requirement for the locals to meet targets even if they have them. Targets are translated into sustainable communities plans, which can affect the status of both public and private projects, but not local government plans. Transportation projects must conform with these regional sustainability plans, and certain private development projects get a CEQA break, but there is no explicit tie between the regional sustainability plans and the local general plans. In the SCAG region, the question of who does the Sustainable Communities Strategy (SCS) is up in the air. Under SB 375, these plans can be done by the subregional COGs in conjunction with the county transportation commissions. But even this arrangement is not as simple as it sounds. Only in San Bernardino County are the subregional COG and the county transportation commission the same entity. In Ventura and Orange counties, the COG and the transportation commission are separate, and in Riverside County there are two COGs and one transportation commission. Los Angeles County has one transportation commission and nine subregional COGs. Furthermore, the statutory responsibility for the SCS does not automatically downshift to a lower level. SCAG can still do the SCS for the entire region, or, apparently, for parts of the region. To make matters even more confusing, the City of Los Angeles is a SCAG subregion, meaning SCAG could conceivably do a sustainable communities plan for the City of L.A., which, in turn, has no obligation to follow in the city's own planning. The question of SCSs and general plans will take years to unfold. In the SCAG region, the question of who will do the SCSs should be resolved by around September, so stay tuned. The relationship between SB 375 and general plans is sure to be one of the hottest issues in California planning over the next few months.

The City of Diamond Bar has reached an agreement with the neighboring City of Industry regarding development of a proposed pro football stadium in Industry. Under the deal in which Diamond Bar agreed not to file a CEQA suit, Industry agreed to pay its neighbor $20 million for traffic mitigation, and, depending on the number of events at the stadium, from $700,000 to $1 million annually for a Diamond Bar Community Facility Fund. Industry also agreed to provide $1 million for a middle school athletic field and to convey to Diamond Bar a 1.33-acre site close to a freeway ramp near the proposed stadium where a hotel could be developed. The deal further calls for creation of an oversight committee that includes the two cities, the sheriff's office and fire departments to develop and implement an event-day public safety plan. And Industry must ensure Diamond Bar residential neighborhoods are screened from an adjacent parking area. The agreement contrasts with a lawsuit filed in March by the City of Walnut over the stadium (see CP&DR In Brief , April 2009 ). Details of the agreement are on the Diamond Bar website .

In a budget-cutting move, the City of Petaluma is disbanding its Community Development Department. After slashing the department from 23 to 11 employees in September 2008, the City Council in April voted 4-2 to lay off all remaining planners, including the community development director. On the recommendation of the city manager, Petaluma's building department will become a stand-alone entity, the police department will assume responsibility for code enforcement, and the geographic information systems (GIS) manager will move to the information technology division. As of July 1, however, the city will employ no planners. "Community Development as it's comprised now will evaporate," said Mike Moore, the department director for nine years. The City Council voted to disband the department without a clear strategy for handling the planning and land entitlement functions. "I'm still working out a transition plan with the city manager," Moore said in late April. "I'm not sure what's going to happen with advance planning, and I'm not sure what we'll do with all the functions we have that are not entirely cost-recoverable, such as handling the counter." Mayor Pam Torliatt said in an email the city is "not eliminating our Community Development Department." She declined to elaborate and directed questions to City Manager John Brown, who conceded he is still working out a plan that will likely rely on laid-off planners returning on a part-time, hourly basis. "I'm going to try to maintain the existing staff on a cost-recovery basis for as long as I can, so that as long as there are projects, we have someone to process them," Brown said. "What I'm determining right now is how little management I can get away with and still have a functioning department." At the beginning of the 2008-09 fiscal year, Petaluma created the Community Development Department its own enterprise fund. Except for a general fund subsidy of $370,000 for administrative costs and code enforcement, the department is expected to generate all its own revenue through fees. Less than two months into the fiscal year, it became obvious that fee revenues were inadequate, which led to last September's layoffs and a reduction in services such as counter coverage and public access to staff members. Seven months later, Brown reported the department's revenues though April 8 were $988,000, while its enterprise-related expenses were $1.274 million, for a deficit of $286,000. A lack of fee-paying development activity created the hole, Brown explained. During a transition period through end of the fiscal year on June 30, "staff will evaluate three options," Brown wrote in an April 13 report to the City Council. "Privatizing current planning functions; contracting for these services from another public agency; and exploring a model that duplicates a private contract but which is delivered using the existing group of permanent, part-time and contract planning staff." The decision to disband the Community Development Department has been the talk of the town – not surprising considering the Sonoma County city's history of land use activism. In 1972, Petaluma voters became the first in California to adopt a growth control ballot initiative, which limited residential development to 500 units a year. Voters rejected subsequent attempts to overturn the building cap, and in 1998 they approved a fairly tight urban growth boundary. Development proposals typically receive intensive public scrutiny, and a recent comprehensive general plan update took no less than eight years to complete. The seven-member City Council is often characterized by members' disposition toward growth. Some people view the disbanding of the Community Development Department as an extreme measure to slow growth. Jack Balshaw, a former councilman, co-author of the 1972 ballot measure and a Petaluma Argus-Courier columnist, described the decision as a "power grab the environmental bloc on the City Council." Without professional planners on board, the City Council may interpret the general plan as it pleases, Balshaw wrote. Local developers and development representatives declined to speculate on the move's potential impact. Attorney Kathleen Miller, who chairs the Petaluma Planning Commission, said the move could slow growth tremendously but said she hoped that was not the council's motivation. "Petaluma already has a reputation for being a place that's difficult to get projects approved and developed. This is sort of another roadblock," said Miller, who recognized the city's fiscal constraints. "Most jurisdictions seem to be laying off some personnel, and not eliminating entire departments." "I'm very concerned about how they are going to handle everything from getting a fence permit all way up to processing major subdivision applications," Miller said. Vice-Mayor Teresa Barrett said her only motivation was balancing the city's tenuous budget. "I see this totally as an interim measure," she said. "I'd like to see an in-house planning department like we have now. I've always been a proponent of that." Councilman Mike Healey voted against Brown's recommendation, but only because he "felt there was enough work coming through to keep the one associate planner on board." He suggested an overhaul of the planning process might actually make development easier. "Petaluma has managed to develop in recent years a reputation as a place a sane person wouldn't want to develop in," Healey said, citing individual project reviews that have lasted five years. The city now has the opportunity to design a process that is more predictable, swifter and still open to the public, he said. "Obviously, this is driven to a big degree, although not as much as some of my colleagues like to think, by the national economy," Healey added. Like many cities, Petaluma has seen its budget hit hard by the recession. Brown said sales tax revenues, based largely on an auto mall, decrease every quarter. A property transfer tax is generating virtually nothing because home values have dropped significantly. Transit occupancy tax revenues are down 15% to 20%, and, because the city has no fund balances, it is receiving no interest, he said. Overall, the city faces a $1 million deficit for the current fiscal year and $3 million worth of red ink in 2009-10. The city is offering incentives in hopes of getting 15 of 340 employees to retire. "In some respects it's a sign of the times," Moore said. "But recognizing that the city has severe budget problems, it seems short-sighted to do away with the experienced people you've got on staff and expect that you can provide the same level of service." Brown said he hopes the planning situation is temporary and the Community Development Department returns in more stable form for the 2010-11 fiscal year. Contacts: John Brown, Petaluma city manager, (707) 778-4345. Councilman Mike Healey, (707) 762-8768. Mike Moore, Petaluma Community Development Department, (707) 778-4301. Kathleen Miller, Petaluma Planning Commission, (707) 547-2000.

As Earth Day approached, I was concerned that I was kicking up a huge carbon footprint while I traveled all over the place helping people figure out how to reduce their carbon footprint. So I decided to try really hard to have a small carbon footprint for a week. I didn't do too badly – I drove 18 miles in four days and 34 miles in five days. But as you can read in my Ventura City Council blog, http://www.fulton4ventura.blogspot.com/ , it wasn't that simple. In the end, I went on a brief carbon diet – between two carbon binges. Oh well. – Bill Fulton

In the third decision in an emerging line of cases regarding antiquated subdivisions, an appellate court has refused to recognize the legality of a parcel shown on a 1909 subdivision map. The First District Court of Appeal ruled the Solano County map did not satisfy the requirements of the Subdivision Map Act's grandfather clause because the law in effect in 1909 did not address the "design and improvement" of subdivisions. The court also ruled that, despite ambiguous statutory language, the Solano County Board of Supervisors had the authority to refuse approval of a certificate of compliance for a parcel shown on the 1909 map. The legal status of lots depicted on old subdivision and parcel maps was unclear for years. Property owners whose land is covered by an old map have used the maps to get certificates of compliance, which verify the legal status of the lots. Until a state law was passed in 2001, property owners would use certificates of compliance in conjunction with multiple lot line adjustments to create subdivisions that would almost certainly not get approved in the present day (see CP&DR , November 2001 ). The state Supreme Court began to clarify the situation when it ruled in Gardner v. County of Sonoma , (2003) 29 Cal.4th 990, that maps recorded prior to the first Subdivision Map Act in 1893 could not be validated (see CP&DR , March 2003 ). Last year, an appellate court relied heavily on Gardner in upholding Sonoma County's refusal to recognize a 1915 subdivision map ( Witt Home Ranch, Inc. v. County of Sonoma , (2008) 165 Cal.App.4th 543; see CP&DR Legal Digest , September 2008 ). The present case builds on Witt . In 2002, Abernathy Valley, Inc., acquired 140 acres in Solano County's Green Valley, west of Fairfield. The property contains part or all of 14 lots depicted on a recorded 1909 subdivision map that divided a 250-acre tract into 25 lots. In 2003, Abernathy applied for a certificate of compliance for only "Lot 12" as shown on the 1909 map, effectively dividing the 140 acres into two parcels. On advice of county counsel, the Board of Supervisors voted to deny the certificate and instructed staff members to recognize lots only on maps approved after 1929. Abernathy sued and Solano County Superior Court Judge Paul Beeman ruled the county must issue the requested certificate of compliance. A unanimous three-judge panel of the First District, Division Five, overturned that ruling. The "central question," according to the appellate court, was whether the 1909 map was covered by the Subdivision Map Act's grandfather provisions. It is generally accepted that maps approved after 1929 are grandfathered today because lawmakers amended the Subdivision Map Act in 1929 to cover the design and improvement of subdivisions. Before 1929, the act was primarily concerned with accurate map drafting, not the subdivision itself. However, the Gardner decision left open the question of whether maps recorded from 1893 – the year of the first subdivision statute – to 1929 establish subdivisions today. Abernathy argued its map qualified for the grandfather provision because the map was recorded in compliance with the law in effect at the time. But the court, citing Witt , rejected the argument because lawmakers in 1943 narrowed the grandfather clause by adding the term "design and improvement." Only maps that regulate the "design and improvement" of subdivisions are eligible for grandfathering, the court ruled. " Witt rejected the argument that the modern grandfather language ‘was intended merely to codify the all-encompassing language that had been a feature of the subdivision map statutes since 1907, without changing its broad scope,' which is essentially Abernathy's argument in this appeal," Justice Lawrence Stevens wrote for the court. "We agree with Witt ." Abernathy argued that refusing to recognize the 1909 map now would amount to an improper retroactive application of the statute because property owners have relied on the map for nearly a century. The court rejected the argument because Abernathy offered no evidence Lot 12 was ever separately conveyed, that the map "altered the legal status of the property" or that application of the current law would alter the property's legal status. Abernathy also argued that under a provision of the map act, specifically, Government Code § 66499.35, subdivision (d), the county could either grant the requested certificate of compliance, or grant a conditional certificate of compliance. The county had no authority to deny the application, Abernathy argued. The court called the statute ambiguous but noted that other courts have upheld the government's right to deny certificates of compliance. " f the county were required to issue a conditional certificate of compliance for Lot 12 rather than deny the application, Abernathy would be able to sell, lease or finance Lot 12 without further compliance with the act; only the development of the parcel would be prohibited until the conditions were fulfilled. … Such a result," wrote Stevens, citing Gardner , "would ‘frustrate the act's objectives "to encourage and facilitate orderly community development, coordinate planning with the community pattern established by local authorities, and assure proper improvements are made, so that the area does not become an undue burden on the taxpayer."' "Our Supreme Court and the courts of appeal have upheld denials of applications for certificates of compliance under such circumstances," Stevens concluded. The court also ruled that denial of the certificate did not violate Abernathy's right of due process. The Case: Abernathy Valley, Inc. v. County of Solano , No. A121817, 09 C.D.O.S. 4684, 2009 DJDAR 5497. Filed April 17, 2009. The Lawyers: For Abernathy: James Corn, Stoel Rives, (916) 447- 0700. For the county: James Laughlin, county counsel's office (707) 421-6140.

In a case regarding a proposed "town center" project in Rancho Cordova, the Third District Court of Appeal has overturned nearly every portion of a Superior Court ruling in favor of environmentalists who oppose the development. The unanimous three-judge appellate panel determined that, on almost all claims, either the City of Rancho Cordova had met the requirements of the California Environmental Quality Act or the plaintiff California Native Plant Society (CNPS) was prevented from litigating certain issues because it had not raised them during the administrative process. The court did rule that the city had violated a provision in its general plan requiring the city to coordinate with the U.S. Fish and Wildlife Service (USFWS) and the California Department of Fish and Game (CDFG) on endangered species habitat mitigation. The central issue was whether the environmental impact report for the 530-acre project had to identify exact locations where vernal pool habitat would be re-created off-site as mitigation for destruction of 15.6 acres of wetlands. The certified EIR and project conditions permitted the developer – a partnership of Angelo Tsakopolous and K. Hovnanian Homes – to use mitigation banking to ensure there would be no loss in the total amount of wetlands. The Native Plant Society argued the city should have named exact locations and studied the environmental impacts of creating the new wetlands. However, the court found that as long as the city identified the development project's impacts and formulated measures to mitigate those impacts, the city could defer the details. The city, wrote Justice Ronald Robie, "was entitled to rely on the results of a future study to fix the exact details of the implementation of the mitigation measures the agency identified in the EIR." James Moose, the developers' attorney, called the court's CEQA ruling "unremarkable" but a relief. Sacramento County Superior Court Judge Patrick Marlette had ruled the city did have to identify and study the exact mitigation locations – a ruling that had "taken on a life of its own," among CEQA practitioners, Moose said. However, the lower court's ruling was contrary to the no-net-loss standard that practitioners have employed and courts have accepted since the 1980s, he said. "You're not sure what mitigation bank you are going to be using," Moose explained. In this case, the lengthy administrative record identified potential mitigation sites, even though the EIR did not. Although the appellate court accepted the no-net-loss performance standard, Moose added, "It's probably not a bad practice to identify the potential universe of mitigation sites out there." Native Plant Society attorney Keith Wagner has asked the Third District to reconsider its decision. In a request for a new hearing, Wagner argued there was no evidence the off-site mitigation measures would fully offset impacts to wetlands. He pointed to numerous comments and letters from USFWS, CDFG, the Environmental Protection Agency (EPA) and the Army Corps of Engineers (USACE) objecting to the project's potential impacts on vernal pools and Morrison Creek, a Sacramento River tributary. " he court has failed to find or identify any competing evidence in the record that supports the city's speculation and unsupported opinions that CNPS, USFWS, USEPA, USACE and CDFG somehow all ‘got it wrong,'" Wagner wrote. The project in question is called The Preserve at Sunridge. It is proposed to contain about 2,400 single-family houses, 300 multi-family housing units, 150,000 square feet of commercial space, an elementary school and a 92-acre open space wetlands area. The project is envisioned as something of a "town center" within the Sunrise-Douglas community plan, which proposes about 20,000 housing units on 6,000 acres of open space and pasture in the Sacramento suburb of Rancho Cordova (see CP&DR Local Watch , August 2002 ). In 2007, the state Supreme Court struck down the EIR for the Sunrise-Douglas community plan because it did not adequately describe long-term water sources and the impacts of using those sources ( Vineyard Area Citizens for Responsible Growth, Inc. v City of Rancho Cordova , 40 Cal.4th 412; see CP&DR Legal Digest , March 2007 ). However, the community plan EIR was still in place during the summer of 2006, when Rancho Cordova certified the EIR for The Preserve and approved that project. State and federal agencies as well as environmentalists opposed The Preserve because it would be located in the midst of a seasonal wetlands complex that provides habitat for vernal pool fairy shrimp and vernal pool tadpole shrimp, both of which are protected by the Endangered Species Act. Although the approved project would preserve a 92-acre open space and wetlands, it would wipe out 15.6 acres of vernal pools and re-route Morrison Creek. The city did require the developers either to preserve two acres of wetlands for every acre lost, or to create new habitat on an acre-for-acre basis. The Native Plant Society sued, arguing the city had violated CEQA and state Planning and Zoning Law provisions requiring that projects comply with a city's general plan. Judge Marlette ruled the city had violated CEQA by (1) improperly deferring mitigation of impacts on wetlands and endangered species, (2) improperly finding that wetlands impacts would be fully mitigated, and (3) failing to disclose effects of water supply plans on migrating fish in the Cosumnes River. Marlette also ruled the city violated the Planning and Zoning Law because the project was inconsistent with general plan policies regarding habitat preservation. The judge rejected some Native Plant Society CEQA contentions because the group had failed to raise the issues – exhaust administrative remedies – during the city's review. Both sides appealed. In overturning Marlette's CEQA rulings for the CNPS, the Third District detected no improper deferral. The Third District said Marlette had confused mitigation deferral with the question of mitigation feasibility; he had rejected the wetlands mitigation as improperly deferred because mitigation measures were not adequately detailed for the city to determine whether they could be implemented. " oncerns about whether it is ‘realistically foreseeable that a mitigation measure will actually be carried out as outlined' do not raise an issue of improper deferral," Justice Robie wrote, citing Marlette's decision. "If the agency has identified one or more mitigation measures and has committed to mitigating the impact those measures address, then the principles forbidding deferral of mitigation are not implicated." Regarding the sufficiency of evidence to support the city's findings, CNPS leaned heavily on the Vineyard decision because the city had essentially tiered The Preserve EIR off the community plan EIR. Because the state Supreme Court rejected the community plan EIR's handling of long-term water supplies and impacts to the Cosumnes River, CNPS argued similar portions of The Preserve EIR were also invalid. The city and developers countered that CNPS had never raised issues regarding water supplies or the Cosumnes River during the administrative process and, therefore, could not raise those issues in court. The Third District agreed. "An objector cannot simply sit back and wait for the earlier EIR to be invalidated, then belatedly assert after the administrative proceeding is complete (as happened here) that the current EIR is defective because it relied on the earlier EIR that has now been invalidated," Robie wrote. Wagner contended the court was wrong. Until the state Supreme Court issued its ruling in 2007 – after The Preserve was approved – CNPS could not know of the defects in the community plan EIR, he argued. The ongoing Vineyard litigation had made the city aware of the environmental review's shortcomings before the city approved The Preserve EIR, he contended. Regarding general plan consistency, CNPS argued the city did not consult – as the general plan requires – with USFWS and CDFG in designing mitigation for endangered species. But the court ruled the city did in fact "consult" with the agencies; the city simply did not accept their recommendations and CNPS failed to show the city's conclusion "was not reasonable based on all the evidence," the court ruled. However, one general plan provision requires that mitigation of impacts to special status species be designed "in coordination" with USFWS and CDFG. The city argued "consultation" and "coordination" were synonymous. The court disagreed, ruling "the mere solicitation and rejection of input from the agencies" was inadequate. This final portion of the ruling means the project will have to return to the city, according to Moose, the developer's attorney. Still, the environmental review process will not be reopened, he said. The Case: California Native Plant Society v. City of Rancho Cordova , No. 057018, 09 C.D.O.S. 3669. Filed March 24, 2009. The Lawyers: For CNPS: Keith Wagner, Lippe, Gaffney, Wagner, (916) 361-3887. For the city: Julia Bond, Meyers, Nave, Riback, Silver & Wilson, (510) 808-2000. For developer Jaeger Road 530, LLC: James Moose, Remy, Thomas, Moose & Manley, (916) 443-2745.