Two audits of redevelopment agencies that the Department of Housing and Community Development completed in August strike hard at local agency practices. The state found a number of accounting and planning deficiencies at the Baldwin Park Redevelopment Agency and told the City of Concord to stop using housing set-aside funds for general code enforcement activity. State auditors found that Baldwin Park could not account for all of its low- and moderate-income housing funds, had spent at least $1.3 million of housing funds on other projects, underreported revenues and overstated expenses in annual reports to HCD, withheld interest that should have gone to the housing fund and adopted a flawed housing production plan. Baldwin Park also failed to adopt a replacement housing plan before approving a commercial project in which 68 housing units and 116 motel rooms were to be demolished to make room for an automobile dealership, according to HCD. The "vast majority" of units identified by the agency in a relocation plan were for senior households, even though none of the 216 people being displaced were seniors, the audit stated. Baldwin Park officials accepted many of the state's recommendations, but the city refused to transfer all of the money identified by HCD to the housing fund, and auditors remained dissatisfied with some of the proposed accounting changes. In Concord, HCD reported that during three audited fiscal years the city had spent $840,000 on a "neighborhood preservation program," which was a general code enforcement program, and $140,000 on a program to inspect all multi-family units. Auditors found no direct connection between the code enforcement programs and the city's affordable housing program, so HCD told Concord to reimburse the housing fund. City officials countered that the expenditures were justified and refused to pay back the housing fund, although officials did agree to reduce such use of housing funds in the future. Even though the city did not verify residents' incomes, officials believe that nearly everyone in the units cited or inspected was eligible for housing fund assistance, City Manager Edward James wrote in response to the audit. "The City of Concord's Neighborhood Preservation Program and Multifamily Inspection Programs are innovative housing programs that are parts of a broader comprehensive city and agency housing strategy," James wrote. "The partial funding of the programs with housing fund monies must be viewed in the larger context of a city and agency that are actively building and rehabilitating housing." But HCD stood by its recommendation because the city could not directly relate the code enforcement efforts to its affordable housing programs. "In addition, these are city-wide programs, not confined to, or found to be benefiting, specific redevelopment project areas as required," the audit states. An HCD audit of Oakland's redevelopment agency found lesser discrepancies, and the city accepted the state's recommendations. Yolo County supervisors in August extended a building moratorium on unincorporated territory near Davis and West Sacramento until June 2004. Meanwhile, a moratorium on commercial development in neighboring Sacramento County appears that it will remain in place until next year. Yolo supervisors imposed the ban so that the county can update the 27-year-old Davis Area General Plan. According to a county fact sheet, a great deal has changed since the plan for the rural area was adopted, including establishment of a federal wildlife area, adoption of new county farming and open space policies, implementation of conservation efforts along riparian corridors, signing of a Davis-Woodland agreement to create a greenbelt between the cities, approval of an initiative requiring voters to decide on Davis annexations, and increasing development pressure. The moratorium was spurred when the City of Davis asked the county to reconsider a permit for a 5,000-square-foot produce stand near Interstate 80. The county shut down that project in May and imposed the moratorium in June. Across the river in Sacramento County, developers are complaining about a ban on new commercial projects. The county imposed the moratorium in April because the inventory of land available for multi-family housing fell about 80 acres short of the amount mandated by a court in 1996 to settle an affordable housing lawsuit. There is a link between affordable housing and commercial uses because the county allows development of multi-family housing in some commercial zoning districts, Planner Eddie Hard explained. Approving more commercial development would further deplete the inventory of land for multi-family housing projects. The county cannot escape the moratorium until it gets an updated housing element certified by the state or rezones land for multi-family housing. The county's focus is on the housing element, with workshops scheduled to begin this month and state certification — the county hopes — by January 2004. A moratorium on retail development in South Pasadena, adopted because city officials said there was a parking shortage, has been thrown out by Los Angeles County Superior Court Judge Dzintra Janavs. She ruled that the City Council violated the state open meeting law by approving the moratorium in closed session. The developer of a strip shopping center halted by the moratorium, HFP, LLP, filed the lawsuit. Santa Cruz County has sued three redevelopment agencies to recover tax increment that the county says it overpaid to the agencies. The lawsuit says redevelopment agencies in Santa Cruz, Scotts Valley and Capitola owe the county a combined $499,000. The county says it miscalculated the tax increment each agency should have received from 1992 through 2002. The U.S. Fish and Wildlife Service has proposed reducing critical habitat for 15 rare plant and animal species that rely on vernal pools by 1 million acres. The critical habitat designation would apply to 740,000 acres in 31 counties, but not to land previously designated in Butte, Madera, Merced, Sacramento and Solano counties. Federal officials reconsidered the critical habitat designation first made in September 2002 after developers complained that the agency did not consider the economic consequences. So federal officials did just that, which led to the exclusion of the five counties and areas elsewhere. Environmentalists vowed to fight the plan. A federal judge has barred the City of Santa Ana from counting ballots in a mail-in election regarding traffic barriers. The election was an advisory vote on whether the city should keep two-year-old barriers between the single-family French Park and the apartment-oriented French Court neighborhoods. The American Civil Liberties Union sued because only property owners could vote. The ACLU contended the process favored wealthy French Park residents over poorer, predominately Latino residents of French Court and the neighboring Logan district. U.S. District Court Judge Cormac Carney sided with the ACLU. The fate of the barriers, which the city erected to block cut-through traffic, remained unresolved.

In a lawsuit over the siting of a Seattle area transit line, the Ninth U.S. Circuit Court of Appeals has ruled that a Department of Transportation environmental justice regulation cannot be enforced in court under the Federal Civil Rights Act. The Civil Rights Act ensures equal application of rights, but not necessarily of laws because laws do not always create rights, the Ninth Circuit panel held. And only Congress — not an executive branch agency via administrative regulation, can create a right, the court ruled. At issue was the Central Puget Sound Regional Transit Authority's siting of a 21-mile light rail line from north Seattle to Sea-Tac Airport. The Authority chose to build a 4.6-mile segment through the Rainier Valley, a predominately minority area in south Seattle. The Authority proposed to build the 4.6-mile segment at street level, unlike most of the rest of the line, which was proposed to be elevated or placed underground. A group called Save Our Valley filed suit under the Civil Rights Act (42 U.S.C. § 1983). Save Our Valley argued that the Authority's plan violated the U.S. Department of Transportation's "disparate impact" regulation, which the agency had adopted under Title VI of the Civil Rights Act. Save Our Valley argued that there would be a disproportionate impact on minority residents, including the taking of residential and business properties, displace of families, disruption of business and safety problems. U.S. District Court Judge Barbara Rothstein dismissed the lawsuit, ruling that the regulation did not create the right claimed by Save Our Valley. The group appealed, and the Ninth Circuit panel upheld the lower court. "The primary questions in this appeal is whether the Department of Transportation's disparate impact regulation creates an individual federal right that can be enforced through a 1983 action," Judge Ronald Gould wrote for the court. "The answer to that specific question depends upon the answer to a more general questions: Can a federal agency's regulations ever create individual rights enforceable through 1983? … We hold that an agency regulation cannot create individual rights enforceable through 1983." "The Supreme Court has held that only violations of rights, not laws, give rise to 1983 actions," Gould continued, citing , 536 U.S. 273 (2002), and , 520 U.S. 329 (1997). "This makes sense because 1983 merely provides a mechanism for enforcing individual rights ‘secured' elsewhere, i.e. rights independently ‘secured by the Constitution and laws' of the United States." The court conceded that federal circuit courts are split on the issue of whether a regulation can create a right. In ruling that a regulation cannot create a right, the Ninth Circuit pointed to the U.S. Supreme Court's rulings in and in , 532 U.S. 275 (2001). In , the court ruled that the State of Alabama's policy of administering driver's license tests only in English did not violate federal regulations implementing Title VI. In , the high court ruled that the Family Educational Rights and Privacy Act was not enforceable under § 1983 because Congress did not intend to create a federal right by passing the act. "We believe the Supreme Court's and decisions, taken together, compel the conclusion we reach today: That agency regulations cannot independently create rights enforceable through 1983," Gould wrote. "Congress, rather than the executive, is the lawmaker in our democracy." In a separate opinion, Judge Marsha Berzon wrote that the two-judge majority's reasoning was all wrong. "In the end, however … the majority's bottom line is correct: The disparate impact regulation — although in my view indubitably a valid legislative regulation — does not create a ‘right' within the meaning of 1893," Berzon wrote. The Case: , No. 01-36172, 03 C.D.O.S> 6038, 2003 DJDAR 7623. Filed July 10, 2003. The Lawyers: For Save Our Valley: Michael Gendler, Bricklin & Gendler, (206) 621-8868. For Sound Transit: Desmond Brown, Central Puget Sound Regional Transit Authority, (206) 398-5000.

The importance of a complete and clear administrative record for development projects came to the forefront in a case from Merced County in which the Fifth District Court of Appeal overturned approval of a gravel mine because the administrative record was muddled. The court said it could discern little from the administrative record and, therefore, could not uphold the project's environmental impact report. Writing for the unanimous three-judge panel, Justice Rebecca Wiseman was blunt: "When practicing appellate law, there are at least three immutable rules: First, take great care to prepare a complete record; second, if it is not in the record, it did not happen; and third, when in doubt, refer back to rules one and two. In this case, the parties totally missed the appellate mark by failing to provide an adequate record for review." "The administrative record is large — 14 binder-sized volumes. It reads as if its preparers randomly pull out documents and threw them into binders, failing to organize them either chronologically or by subject matter," Wiseman continued. "Key findings required under CEQA are impossible to find — let alone sufficient to enable us to determine whether they are supported by substantial evidence." In ordering the county to set aside its approval of the project, Wiseman warned, "We iterate to anyone who will listen: CEQA has very specific findings that must be in the record. Do not ignore the requirements or, like these parties, you will find yourself … forced to start over at great public and personal expense." The case stemmed from the county's approval of Calaveras Materials' proposal to extract aggregate from 456 acres of farmland adjacent to the Merced River, about 12 miles north of Merced. Calaveras proposed 35 years of operation in 14 phases, with processing occurring at an existing plant nearby. The Merced County Planning Commission and, on appeal, the Board of Supervisors approved the project and an EIR. The EIR contained overriding considerations because of the project's unmitigated loss of farmland and because of impacts to habitat for the rare Swainson's hawk. A group called Protect Our Water (POW) filed a lawsuit alleging the EIR's range of alternatives was inadequate, the EIR failed to evaluate all biological and cumulative impacts, the final document did not contain adequate responses to comments on the draft EIR, and the county's findings were not supported by substantial evidence. Merced County Superior Court Judge William Ivey ruled for the county, so Protect Our Water appealed. In considering the appeal, the Fifth District never made it to the merits of the case. The court started to deal with the allegations regarding alternatives, but found "it is nearly impossible to locate the pertinent documents." The court refused to go further. "POW elected to prepare the administrative record in this case," Wiseman wrote. "Therefore, the fault in the poor organization and indexing of the record plainly falls on POW. But poor organization and a deficient master index alone do not necessarily make for an inadequate record. The problems with the record here arise not simply from disorganized, inadequately indexed documents. The problems are more fundamental. The documents generated by the county are inadequate for review. … We find it inconceivable that, given the scope and magnitude of this project, the documents comprising the administrative record are so defectively drafted." Because it could not determine whether the county made the required findings, the court reversed the lower court and overturned the project approval. The case has received quite a bit of attention from CEQA practitioners. "The decision clearly illustrates what can happen when the administrative record is not well managed," according to an update from Sacramento consulting firm Jones & Stokes. "To avoid problems with an inadequate or poorly organized record, every lead agency should consider developing a standardized administrative record protocol that establishes a consistent, uniform approach to this critical aspect of CEQA practice." The Case: , No. F041200, 03 C.D.O.S. 6067, 2003 DJDAR 7592. Filed July 9, 2003. The Lawyers: For POW: Rose Zoia, (707) 526-5894. For the county: Dennis Myers, county counsel (since retired), (209) 385-7564. For Calaveras Materials: William Gnass, Mason, Robbins, Gnass & Browning, (209) 383-9334.

The state Supreme Court has accepted for review two land use cases in which appellate courts limited the jurisdiction of state officials. One case involved the Coastal Commission and the other concerned the director of the Department of Conservation. In the Coastal Commission case, the First District Court of Appeal ruled that the state panel did not have authority to consider the environmental impacts to areas inside the coastal zone caused by a development proposed outside the coastal zone. The project involved was a 114-house subdivision in the Playa del Rey area of Los Angeles proposed by Catellus Residential Group. On appeal from environmentalists, the Coastal Commission approved the project, in which only a road to the houses would be built in the coastal zone and all houses would be built outside the coastal zone. Environmentalists sued, contending the Coastal Commission should have considered the impact of the houses on nearby coastal wetlands. But a San Francisco Superior Court and the First District ruled that the Coastal Commission's jurisdiction ends at the boundary for the coastal zone. "Consideration of environmental impacts originating outside the coastal zone is the responsibility of the local agency with authority over their point of origin — here, the city. It is not the responsibility of the Commission," the appellate court ruled. The court also ruled that the Coastal Commission could adopt findings for its decision five months after voting for the project because the Commission explained its reasoning at the time of the vote. Environmentalists contended this amounted to after-the-fact rationalization, which the California Environmental Quality Act (CEQA) forbids. The case is , No. S116081 (see , June 2003). The second case involved two quarries in El Dorado County. The surface mines had been operating without permits or financial assurance of reclamation for years. After prodding from the state, the county approved mitigated negative declarations, reclamation plans and financial assurances for the mines in 1997. The director of the Department of Conservation sued the county and the miner, contending that the plans approved by the county violated the Surface Mining and Reclamation Act (SMARA) and that the mitigated negative declarations did not satisfy CEQA. An El Dorado County Superior Court ruled that only the State Mining and Geology Board — and not the department's appointed director — could take legal action against the county and the miner. The court also awarded about $500,000 in attorneys' fees to the county, the miner and trade associations that intervened in the case. A Third District Court of Appeal panel voted 2-1 to uphold the lower court. "SMARA gives the Board, not the director, the role of oversight over lead agencies," the majority ruled. " f he believes the lead agency is approving reclamation plans that do not comply with SMARA, his remedy is to take his concerns to the Board," not to file a lawsuit. One justice dissented, saying SMARA does not limit the director's authority in the way the majority stated. The majority, however, overturned the lower court's award of attorneys' fees because dismissal of the lawsuit failed to "effectuate a significant public policy" — the standard required for awarding fees in such a case. The state Supreme Court said it would review only the issue of whether the director had the right to seek court relief for the county's alleged violations of SMARA and CEQA. The high court deferred consideration of the attorneys' fees question until the court decides a related case. The case is , No. S116870.

Infill development is increasingly the best — or only — option for landlocked and built-out cities to add housing. However, estimating where and how much infill housing could realistically be developed are challenges. Many city planners identify vacant lots but cannot say with certainty that the lots will be developed. And the definition of "underutilized" varies from expert to expert. As a result of the imprecision and varying approaches, the state Department of Housing and Community Development (HCD) is hesitant to credit cities for infill estimates in their housing elements. Without those potential infill units, some cities have a great deal of trouble documenting that they can accommodate their fair share of regional housing. To tackle this problem, Solimar is working with the non-profit group Environment Now and the City of Los Angeles to develop a standard methodology that estimates realistic infill housing potential well enough to count towards meeting state-mandated Regional Housing Needs Allocation (RHNA) targets. Our goal is to distribute the methodology to cities and counties so that local governments may receive more credit for feasible and likely infill housing development in future rounds of housing element updates. Our methodology, which is still evolving, starts with local planners designating infill study areas (ISA). These are census-block-based neighborhood areas with similar zoning and common housing ages and types. Planners characterize the ISAs based on 11 criteria (see chart) leading to a series of ISA types, such as "postwar, low-density, single-family development with poor transit access," or "commercial and small apartments along transit arterials." Each infill study area's current and potential housing are calculated using Census 2000 housing counts, post-Census permit records, and zoning. The next step is to apply quantifiable and feasible infill strategies targeted to ISA types, while still reflecting zoning. This is where the City of Los Angeles comes in. We are developing and testing infill strategies on 519 ISAs identified by Los Angeles city planners earlier this year. Strategies being developed are aimed at both market-driven situations and those needing government action such as a change in design standards. The strategies do not necessarily include changing zoning or subsidized development. The strategies that are most quantifiable and financially feasible are being "formulized" by Economic Research Associates so that the strategies translate into identifiable increases in housing densities. The idea is that a planner in any urban city or county could apply a strategy to target ISA acreage, and the formula would produce a theoretical increase in housing units. In reviewing housing elements, HCD would then credit cities and counties for some or all of the estimated infill housing identified by this methodology. Cities and counties would need to monitor the success of the strategies and report on their success. The methodology will be relatively inexpensive and easy to use with a companion manual and sample documents. The process could be done without a geographic information system (GIS) in small cities, but the methodology is designed for a GIS system based on ArcView 3.3, an Access database, TIGER census files, and typical building permit databases. The methodology could be combined with other planning efforts, such as brownfield reuse, vacant lot inventories, and redevelopment. The methodology is still evolving, but it is promising and should help cities and counties realistically estimate infill housing enabled by specific government actions and housing that should occur as a result of market-driven activity. The main goal is to get local planners, state housing officials and developers all on the same page.

The First District Court of Appeal has published its decision upholding a slow-growth initiative approved by Alameda County voters in November 2000. The decision to publish the opinion regarding Measure D came after the court rejected developers' challenges early this year, reconsidered that decision, and then stood by its ruling in an unpublished opinion issued July 1. The lengthy ruling published at the end of July rejects developers' contentions that the initiative broke the single-subject rule, violated state housing law and was an unconstitutional taking of land. Nearly three years ago, 57% of Alameda County voters backed Measure D, a Sierra Club-sponsored initiative that drew tight growth boundaries around cities and unincorporated communities in central and eastern Alameda County (see , December 2000, October 2000). Importantly, the boundary excluded the territory of the North Livermore specific plan, where the City of Livermore, the county and developers had constructed a plan for 12,500 housing units (see , June 2000). After the election, Shea Homes and one landowner, the Lin family, filed a lawsuit alleging the election and planning law deficiencies while Trafalgar, Inc., filed a separate suit that also included a takings claim. The trial court ordered the lawsuits combined and then ruled against the developers. Shea, the Lins and Trafalgar appealed, and a unanimous three-judge panel of the First District, Division Five, upheld the lower court. The First District first dealt with the argument that Measure D violated the single-subject rule found in Article II, section 8(d) of the state constitution. The developers argued that Measure D on one hand tightened the urban growth boundary and altered land use designations, while on the other hand the initiative amended the county's solid waste management policies, in part by prohibiting the planning of landfills with more than 15 years of capacity. Developers argued land use and garbage policies were separate subjects. The court disagreed, citing Measure D's "numerous findings pertinent to its stated purpose." Those findings included the necessity of protecting open space, the uneconomical nature of scattered development, the environmental degradation caused by "sprawl," the environmental impact and ugly nature of landfills, and the ability of recycling to reduce the need for land disposal of trash. "Given these findings, the provisions of Measure D that limit landfills and require the county's Board of Supervisors to conform and coordinate East County Area Plan solid waste policies and those of other county agencies (the Recycling Board and the Waste Management Authority) are eminently germane to Measure D's purpose of enhancing and protecting the open space and agricultural lands of East County and the Canyonlands," Presiding Justice Barbara Jones wrote for the court. In fact, state law requires general plans to designated land for solid and liquid waste disposal facilities, she noted. The intent of the single-subject rule "is to avoid voter confusion and subversion of the electorate's will," Jones continued. "An initiative that is entitled ‘Save Agricultural and Open Space Lands' reasonably and naturally encompasses provisions that will (1) limit a use of the land at issue, such as a landfill, that is incompatible with this title, and (2) promote an activity, such as coordination of solid waste recycling and management, that fosters this title by reducing a cause for encroachment on open space." The court then considered developers' arguments regarding state housing law. At issue were four sections of the Government Code — § 65913.1, which requires a housing element to designate sufficient land for residential uses to meet housing needs; § 65008, subdivision (c), which prohibits the county from discriminating against low- and moderate-income residential development; § 65584.5, which allows one jurisdiction to transfer some of its share of regional housing needs to another jurisdiction only if certain conditions are met; and § 65915, which requires the county to grant a density bonus if a portion of a development serves low-income households. The court found that Measure D violated none of the sections. Developers argued that the proposed North Livermore development would provide a mix of housing units, and the initiative offered no substitute locations. But the court said no because the housing element in effect at the time specifically excluded North Livermore as a site for development. The court also rejected the argument that the initiative's downzoning of land outside the growth boundary discriminated against affordable housing development. In fact, Jones wrote, Measure D requires projects of 20 units or more to include affordable units and requires the county to impose a fee for very low-income housing on builders of market-rate units. The initiative did not directly or by implication transfer Alameda County's housing obligation to another jurisdiction, the court ruled. As for the density bonus argument, the court ruled, "Measure D's low density limitation of one specific region within East County does not preclude accommodation of the state policy promoting low-income housing construction in other regions of the county." Finally, the court turned to Trafalgar's takings claim. The developer, which had been trying for years to develop 77 acres in an area near Castro Valley known as the Canyonlands, contended that the initiative on its face was an unconstitutional taking. The court said that a facial challenge can succeed only if the regulation does not "substantially advance legitimate state interests" or denies the owner economically viable use of the land. The court ruled that preservation of open space and discouraging the environmental impacts of urban sprawl were clearly legitimate state interests. As for use of the property, the court noted that Measure D did not change the "agricultural" designation on Trafalgar's land. That designation allows one house per parcel, secondary units, public and recreational uses, quarries and agricultural structures. Additionally, Measure D specified that its provisions would not apply if they deprived a person of constitutional or statutory rights, Jones wrote. Trafalgar tried to turn its takings argument into an "as applied" challenge, but the court refused to consider the argument because Trafalgar had not submitted a development application since Measure D's passage. The Cases: , and , Nos. A097072, A097387, A097454. 2003 DJDAR 8397. Filed July 1, 2003. Ordered published July 29, 2003. The Lawyers: For Shea: Kathy Banke and Jayne Fleming, Crosby, Heafey, Roach & May, (510) 763-2000. For Trafalgar: David Lanferman, Sheppard, Mullin, Richter & Hampton, (415) 434-9100. For the county: Lorenzo Chambliss, senior deputy county

The Fifth District Court of Appeal has upheld an environmental impact report's water analysis for the proposed University of California, Merced, campus. In an unpublished opinion, the court rejected project opponents' attempt to liken the UC Merced water analysis to an EIR that was rejected in , (1996) 48 Cal.App.4th 182. That case, commonly called by the proposed development's name, Diablo Grande, helped set the standard for what is required of a water study (see , November 1999, August 1999, September 1996). But in the UC Merced case, the court held that project opponents simply disagreed with the studies in the EIR, which was not enough to throw out the document. "In the case the EIR simply did not identify what the source of water would be," Presiding Justice James Ardaiz, who penned the earlier decision, wrote in the UC Merced case. "In the present case, however, the EIR identifies the source of water for the new campus as groundwater from the 30 million acre-feet of groundwater stored in the eastern Merced County groundwater basin." "The EIR also states that ‘well development to serve the campus would not result in significant environmental impacts that would require mitigation,'" Ardaiz continued. "The EIR in the present case thus does identify the sources of water, and does address whether the supplying of water will have an adverse environmental impact. Appellants' disagreement with the EIR's conclusions does not render the EIR legally deficient." In January 2002, the UC Board of Regents approved a long-range development plan and EIR for a new campus about two miles northeast of Merced. A handful of local environmental groups sued, claiming the EIR was inadequate for a number of reasons. Merced County Superior Court Judge William Ivey ruled for the university. The environmental groups appealed but only regarding the EIR's consideration of water. The project opponents argued that the EIR ignored certain information, including a letter from the state Department of Food and Agriculture saying that the groundwater basin was getting pumped faster than it was being replenished and the campus could aggravate the situation. Opponents contended the EIR should have contained more analysis and reached different conclusions. But the court ruled that additional study is not always necessary, and the fact that experts have formed different opinions based on the same information is not enough to render an EIR inadequate. "So far as we can tell, appellants wish the EIR had reached a conclusion that there is an insufficient amount of water available to serve the new campus, or that providing water to the new campus would harm the water supply of the wells of nearby landowners. But the EIR did not reach that conclusion," Ardaiz wrote. Stephen Kostka, the university's attorney, and the Building Industry Legal Defense Foundation requested publication of the opinion, but the court denied the request. Kostka said he knows of 12 published California Environmental Quality Act cases involving water supply analyses — and not once in those cases has the court upheld the analysis. The UC Merced case would have provided guidance on how to adequately study water issues, he said. "I think courts are having difficulty with this issue," Kostka said. Groundbreaking for UC Merced occurred in November 2002. The Case: , No. F041622. Issued June 24, 2003. The Lawyers: For the rescue center: Patience Milrod, (559) 442-3111. For UC: Stephen Kostka, Bingham McCutchen, (925) 975-5312.

A NEW REPORT by the state auditor suggests that California's brownfields program could be stronger. The state lacks an inventory of brownfields and even a definition of the term, which generally refers to abandoned industrial sites, gasoline stations and mines. The Department of Toxic Substances Control (DTSC) has an inventory of only 46 "orphan" sites, which are polluted locations for which the responsible party has not been found or cannot fund cleanup. The State Water Resources Control Board told the auditor that there really is no such thing as an orphan site because of the state's strict liability laws. The auditor reported that DTSC spent $9.7 million on orphan site cleanup from July 1998 through April 2003 — a tiny fraction of the $124 million to $146 million the agency anticipates needing to remediate the identified sites. Yet a 2000-01 general fund allocation of $85 million to a cleanup fund went largely unspent, as DTSC returned $77 million to the general fund. The auditor recommended state agencies do a better job of pursuing federal funding, rely more heavily on hazardous materials fees for cleanup, settle on a uniform definition of brownfield and obtain a comprehensive list of orphan sites and locations for which only partial liability could be determined. The agencies disputed some of the findings and recommendations, especially the call for a definition and site inventory. A site's presence on such a list may "create a stigma or negative perception" and hinder reuse. " aving no definition, or any obligation stemming from a property being designated as such, may in many instances encourage or facilitate property transactions that may not otherwise be pursued," the California Environmental Protection Agency wrote in response. The full report is available on the state auditor's website: www.bsa.ca.gov/bsa/index.html . ***** SAN BENITO COUNTY voters will decide on a slow-growth initiative after all. The initiative headed for the March 2004 ballot would require voter approval of rezones for projects of 100 or more units, cap growth at 1% annually, and quadruple the minimum parcel size for tens of thousands of acres of agricultural and range land. In April, San Benito County supervisors adopted the initiative rather than put it on the ballot. But the county Farm Bureau and a business organization fought back by gathering signatures on a referendum petition. Initiative proponents and county officials questioned the technical legality of the referendum, but supervisors decided to let voters have the final word. "The board feels this is bigger than any of us," Board of Supervisors Chairman Richard Scagliotti said before the unanimous vote to place the initiative on the ballot. ***** A DOWNTOWN LOS ANGELES redevelopment plan has been blocked by a Los Angeles County Superior Court Judge. When the city hit the court-mandated spending cap for the central business district redevelopment area in 2000 — 10 years ahead of schedule — the city moved properties into a new city center redevelopment project area. The city hoped to encourage development of a hotel and entertainment complex near Staples Center. Los Angeles County sued, arguing that the city was trying to get around the spending cap. Judge Marvin Lager agreed, ruling that the city "may not do indirectly what could not do directly." The ruling was similar to a 2002 appellate court ruling striking down a City of Upland attempt to move property from an old redevelopment project area to a newer project area (see , August 2002). ***** LOS ANGELES MAYOR James Hahn has released a new plan for reworking Los Angeles International Airport that would not add to the airport's current, theoretical capacity of 78.9 million passengers per year. Hahn's plan calls for replacing the parking garage adjacent to terminals with a new main terminal, shifting runways and taxiways farther apart and building a new parking and screening facility a few blocks away, just off the San Diego Freeway. The plan is a contrast to previous Mayor Richard Riordan's blueprint, which would have increased LAX capacity to roughly 90 million passengers per year. The airport handled abut 67 million passengers during 2000, its biggest year. Hahn's plan makes meeting the 78.9 million passenger capacity mark realistic by providing more room between runways and taxiways. But passenger growth beyond that level should be at regional airports, contended Hahn, who made no provision for additional runways at LAX. The plan has received a mixed reception from the airlines and other public officials. ***** THE CALIFORNIA DEBT and Investment Advisory Committee reported that redevelopment assistance was essential for most of the 28 transit-oriented, mixed-use developments CDIAC studied in a recent survey. The survey focused on five specific projects and found that "absent redevelopment funding and programming support, these transit-oriented projects could not have proceeded." The July report came in response to a Senate Local Government Committee request for CDIAC input on SB 465 (Soto). The bill would allow local governments to establish redevelopment project areas within half a mile of transit stations whether or not blight existed, and would allow transit village redevelopment project areas to collect tax increment for an extra 15 years. The bill stalled in the Senate Appropriations Committee but could return later in the two-year legislative session. ***** FARMS IN THE CENTRAL Valley will be subjected to water discharge requirements for the first time under a plan approved in July by the Central Valley Regional Water Quality Control Board. The plan requires owners of 7 million acres of irrigated farmland to register with the state agency and to monitor water runoff for pollution. Farmers complained that the plan was unworkable, while environmentalists argued that it did not go far enough to protect rivers and groundwater. The program does not require farmers to pay enforcement costs, and the agency conceded it does not have the money for ongoing enforcement. The board vote was a reversal of a late 2002 decision to extend an exemption from water quality requirements to farmers. The board reconsidered its decision when the Attorney General's Office found that Board Member Beverly Alves, a Glenn County rice farmer, had a conflict of interest and should not have voted or lobbied her colleagues. The regulation scheme now heads to the Water Resources Control Board. ***** THE GOVERNOR'S OFFICE of Planning and Research has released a second draft of an update to the office's general plan guidelines. The second round contains extensive revisions to a new chapter on sustainable development and environmental justice. The second draft also includes new material on trends such as "visioning" and the early identification of broad planning goals. The agency anticipates publishing the first update to the general plan guidelines since 1998 by year's end. More information is available on the website, www.opr.ca.gov . ***** A NEW TRANSPORTATION impact fee in western Riverside County and 14 cities led to a flood of building permit applications before the fee took effect in June. Cities and the county issued permits for nearly $500 million worth of housing during May — up from about $90 million worth of construction permitted in May 2002. The City of Moreno Valley alone issued permits for 830 new homes this May. The $6,650-per-house fee is intended to help fund $2.6 billion in transportation improvements during the next 20 years (see , March 2003). ***** AN ALAMEDA COUNTY County growth control initiative remains intact despite the First District Court of Appeal's reconsideration of its earlier ruling upholding the initiative. The unanimous three-judge panel in July stuck with its decision, despite granting developers' request for a rehearing. Shea Homes, Trafalgar Inc. and a rural Livermore area property owner contended the initiative violated the single-subject rule and prevented cities and the county from meeting fair-share housing requirements. Measure D, approved by voters in 2000, set growth boundaries around cities and unincorporated communities in central and eastern Alameda County (see , December 2000, October 2000). ***** THE SANTA CRUZ COUNTY grand jury has criticized county supervisors for meddling with day-to-day planning department operations. Supervisors use phone calls, emails and personal meetings to direct routine operation of the planning department, according to the grand jury, which blamed the micromanagement and political pressure for preventing planners from completing their duties in a timely fashion. ***** IN MAIL BALLOTING that concluded in July, Santa Ana property owners overwhelmingly rejected an assessment to fund street and park maintenance, street lighting and graffiti removal. Only 29.4% of property owners voted for the assessment, which was set at $33 a year for houses and $24 annually per apartment.

Three years ago — back when California had money — Gov. Gray Davis came up with a clever idea to push more money into transportation projects in a way that would benefit his core political constituencies without raising taxes. Today, Davis's Transportation Congestion Relief Program appears to be self-destructing, along with the entire system of funding state transportation projects. The whole congestion relief episode contains an important lesson about how optimistic budgeting in good times can be counter-productive when bad times arrive. The transportation funding mess has been brought into focus by an extraordinary recent report from the state auditor, who found that both Davis's congestion relief fund and the State Highway Account — the chief funding source for road projects created by a mixture of revenues — are about to go negative. The California Transportation Commission has already reduced State Transportation Improvement Program (STIP) allocations by $3 billion this year in an attempt to plug the gap, meaning that both the governor's pet projects and most of the regular STIP projects are now stalled. The STIP numbers are sobering indeed. Out of a planned $1.6 billion required to fund and build hundreds of projects during the 2002-03 fiscal year, the California Transportation Commission only allocated about $800 million. Out of $2.1 billion required to fund projects during 2003-04, the commission has so far allocated not a cent. And those cutbacks, the state auditor reports, are not enough. Caltrans budgeters are currently predicting a cash surplus in the State Highway Account, but only by overestimating certain revenues, such as state fuel excise taxes and commercial weight fees. A more realistic estimate of these revenues, along with the continuing state budget crisis, which will prevent the state from moving any more money from the general fund into the special transportation accounts, will surely plunge the state's transportation construction program into the red, perhaps in this fiscal year. State transportation planning is a complicated world that revolves around the STIP, which is the prioritized list of construction and renovation projects approved by the California Transportation Commission. (Regional-level projects are included in regional TIPs.) When Davis's traffic program came along, bureaucratic wags called the program the G-TIP — Gray's Transportation Improvement Program. And in many ways, it was a remarkable example of peculiar California budgeting, a pre-allocation of the general fund. In that sense it was similar to ballot-box budgeting efforts such as the Proposition 98 school funding initiative. But the earmarked transportation funding was mandated by the governor's own legislation. The Transportation Congestion Relief Program allocated about $1 billion a year in general fund money — mostly from sales tax revenues on fuel — to a list of about 140 specific transportation projects around the state. The top-priority projects were not the same ones that had emerged from the state's regular transportation programming priorities; mostly, the projects served urban areas that are important to Democrats, such as Santa Clara County, where a BART extension to San Jose is planned. Cunningly, the governor's initiative did not provide all the funding for any project; rather, it threw just enough into the pot (usually 25% to 30% of the cost) to move the projects up the list for other funding (see Insight, July 2000). The whole thing was a manipulative, politically driven end-run around the executive branch's own transportation planning system. But in the tax-rich world of 2000, everybody went along with it. Why not? After all, this was money flowing into transportation that would otherwise have been spent on something else. There is a difference between ballot-box budgeting and a chief executive's pre-allocation, however. Once the voters have made a decision about how to allocate the state's general fund, legislators are unlikely — and, in the case of constitutional amendments such as Proposition 98 — unable to alter the system. But in desperate times, it turns out that even a constitutional amendment gives the governor and the Legislature great leeway to start messing around with things. And mess around with the Transportation Congestion Relief Program they have. Technically, the program created a separate fund known as the Transportation Congestion Relief Fund (TCRF) designed to receive transfers from the general fund for the governor's special list of transportation projects. The legislation in 2000 also created another fund known as the Transportation Investment Fund, or TIF, where sales tax revenues from gasoline would be parked rather than in the general fund. In 2002, voters approved Proposition 42, a constitutional amendment that cemented the gasoline sales tax as the TIF's funding source. The congestion relief projects were supposed to receive $5 billion from these two sources from 2000 through 2008. About $1.5 billion originally came from a general fund transfer to the TCRF, and the remainder was supposed to come from the TIF. (Any overage in TIF funds was supposed to be distributed to other projects according to a formula.) However, things have not worked out as planned — not surprising, considering that state leaders have wrestled with a budget deficit of more than $30 billion for months. For one thing, the Legislature has now "borrowed" more than $1 billion from the congestion relief fund to prop up the general fund and seems to have no plans to pay the money back. For another, the governor and the legislature have not transferred the $1 billion in sales-tax-on-gas revenues from the general fund into the TIF for this fiscal year. It turns out that, under Proposition 42, they can suspend the payments in a budget crisis. This description could go on and on, but the bottom line is that because of the budget crisis the state simply is not implementing the congestion relief program that was adopted by the Legislature only three years ago and added to the state constitution last year. And more than the governor's pet list of 141 projects is at risk. The state's decision not to shift funds from the general fund into these two special transportation accounts has also placed the entire state highway construction program at risk. The state auditor's report made that point clear. One rule of thumb around Sacramento is that when everybody else runs out of money, there is still a lot sloshing around at Caltrans. It is the biggest state agency, and it has reliable sources of revenue that are least partly protected from the vagaries of general fund budgeting. Transportation projects always get taken care of. But the maneuvering of the last few years has made Caltrans and its projects more vulnerable than they used to be. Slicing off general fund money to transportation projects via constitutional amendment is fine, except that it was done in typical California fashion — a method familiar to local governments that have lost property tax revenues to a special fund for schools. A separate account was created; statutory and constitutional provisions were put into place about how to transfer general fund money into the separate account; and an override system was included so that the governor and the Legislature could pull the plug on the whole thing if the budget went south. That is what has happened. In the crazy world of Sacramento budget deficits, even Caltrans can't count on anything.

Voters in the Contra Costa Water District will decide early next year whether to quadruple the capacity of five-year-old Los Vaqueros Reservoir in the hills east of Mount Diablo. The reservoir expansion would increase water reliability and improve water quality but would not provide more water for growth, water district officials insist. The environmental community — which is a factor in many East Bay elections — appears to be ambivalent so far. The project could benefit the San Francisco Bay Delta ecosystem. But some environmentalists fear the project could induce growth in the East Bay. Notably, one of the potential partners in the expansion project is Zone 7 of the Alameda County Flood Control and Water Conservation District, which provides water to Livermore and the Amador Valley — an area where the growth wars have raged for decades. In July, the water district board of directors set an advisory vote for March 2004. Directors say they will not go forward with the expansion without voter approval. Water district voters in 1988 approved construction of Los Vaqueros Reservoir, which cost the agency about $450 million. Construction was completed 10 years later and today the lake can hold up to 100,000 acre-feet of water. Expansion would increase the reservoir's capacity to as much as 500,000 acre-feet. Los Vaqueros appears to fit well in an age when damming rivers is infeasible for a variety of reasons (see Environment Watch). Los Vaqueros is located "off stream," meaning that water is pumped from elsewhere to an isolated surface storage location. The off-stream nature of the reservoir gives the operators a great deal of flexibility for filling and drawing down the lake. "An expansion project would provide improved water quality, drought reliability and a significant financial reimbursement to the customers of the CCWD ," states a project planning report released in May. "An expansion project would contribute to enhancing the Delta environment and contribute to Cal-Fed's goal for restoration of the Delta ecosystem." To improve water quality, operators would fill Los Vaqueros with freshwater from the Delta when flows are high and water quality is good. This water would then serve Bay Area water customers during the summer and fall, when flows into the Delta are low and the water quality is poor. Reliability would be aided by storing water at Los Vaqueros during wet years for use during drought periods, according to the planning report. The additional storage could also be used if other portions of the Bay Area's public water system were shut down because of earthquake, levee failure or a chemical spill. The potential environmental benefits are many. Reducing pumping from the Delta when flows are low would reduce the number of fish — some of which are endangered species — that get sucked into pumps. Letting more water flow during dry periods would also improve habitat conditions in the Delta and the San Joaquin River, which State Water Project pumps cause to flow uphill at times. The additional storage could also be part of an environmental water account, allowing Bay Area water agencies that rely on the South Bay Aqueduct to shut down Delta pumps for periods of time. The details of all of these benefits, however, remain uncertain because the agencies potentially involved in the project have not yet decided how to operate the reservoir. The studies completed to date provide "bookends" for how the reservoir would operate, with the different scenarios emphasizing different benefits, said Marguerite Naillon, project manager for CCWD. Operating plans will not be finalized until the water district knows who its partners will be for the project. At any rate, Naillon said, operations would be restricted by the Cal-Fed Record of Decision and CCWD board policy. Together, those ensure that the additional storage would not serve growth and — importantly for CCWD voters — would not be shipped to Southern California. "The existing reservoir is not growth inducing, and this one wouldn't be either. It's basically just timing of the diversion," Naillon said. "Nobody here in the Bay Area is concerned about water for growth. What people care about in the Bay Area is water quality and having enough water for drought." But some environmentalists are not convinced. The water district has no business asking voters to decide on an undefined project, said Mike Daley, conservation director for the San Francisco Bay Chapter of the Sierra Club. Daley said his group does not necessarily oppose expansion of Los Vaqueros. But the Sierra Club wants to see more details, including well-defined mitigation measures and a stronger assurance that the additional storage will not be additional water for new houses. "They are going to voters without a project. They haven't done an environmental impact report," said Daley. The water district might be headed to the ballot early because voters might be less likely to approve the expansion if they knew all of the potential impacts and mitigations, he charged. But CCWD officials, who have been talking with Daley and other environmentalists, dismiss his complaints. The state Department of Water Resources and the federal Bureau of Reclamation have funded about $7 million worth of studies and planning. Although there is no EIR, Naillon said much of the analysis is detailed and could easily be folded into an EIR or environmental impact statement (the federal equivalent of an EIR). As for the timing of the election, the district tried the find the point at which it had enough information but had not spent so much money on planning and studies that it was committing itself, Naillon said. A number of federal, state and local agencies will be closely watching the advisory election results. Zone 7 Assistant General Manager Vince Wong said an expanded Los Vaqueros could be "another tool in water management" for his agency. But Zone 7, which recently completed a groundwater banking agreement with the Semitropic Water Storage District in Kern County, has made no commitments to the Los Vaqueros project. "It seems to us that the cost of water supply reliability from the project might be high for us," Wong said. Still, the water quality benefits are appealing, he added. Cost is likely to become an issue at some point. The expansion is estimated to cost $1 billion to $1.5 billion. Contra Costa Water District directors say that their constituents will not pay for the expansion. In fact, the agency contends it could make money by operating a larger facility. But exactly who would pay the construction tab is unknown and depends largely on who the eventual partners are. State and federal agencies involved in the Cal-Fed effort might be interested, but money for Cal-Fed has dried up faster than the San Joaquin River below Friant Dam. The Los Vaqueros expansion is one of five surface water storage projects identified by Cal-Fed as worth pursuing. Although it is the only one of the five that hinges on voter approval, the Los Vaqueros project might be the first to actually get built. Two of the five options — enlarging Shasta Dam, and enlarging Friant Dam or building an equivalent — depend on the Bureau of Reclamation, which is short of money for water storage projects these days. And the final two options — new storage in the Delta and the long-proposed off-stream Sites Reservoir in Colusa County — would have to be built from scratch. Contacts: Marguerite Naillon, Contra Costa Water District, (925) 688-8018. Vince Wong, Alameda County Flood Control and Water Conservation District Zone 7, (925) 484-2600. Mike Daley, Sierra Club, San Francisco Bay Chapter, (510) 848-0800. Los Vaqueros website: www.lvstudies.com

The right to pump groundwater does not equate to the right to store water in the same groundwater basin, the Second District Court of Appeal has ruled. In perhaps the first published ruling of its kind, the court held that unused groundwater storage space is a public resource that must be managed for the public benefit. The court ruled against seven cities, four water companies and an irrigation district, which collectively control the right to half of the water pumped annually from the Central Basin in metropolitan Los Angeles. Those entities sought to apportion storage rights in the same proportions as pumping rights. The court rejected the plan and instead ruled that the Water Replenishment District of Southern California was authorized to manage groundwater storage. The decision could be a victory for public agencies and developers that need to prove that water is available for growth because a managed structure for groundwater storage adds more certainty to local and regional water analyses, according to attorney Edward Casey, the Weston Benshoof attorney who represented the water replenishment district. Under litigation initiated in 1962, the Los Angeles County Superior Court has apportioned water rights within the Central Basin, and the court has retained its jurisdiction. A total of 148 public and private entities now have adjudicated water rights in the basin. In 2001, 12 entities asked to amend the most recent court judgment to quantify and allocate the rights of water holders to use underground storage space. They proposed that the court divide up the usable storage space to the 148 entities based on annual pumping allocations. The dozen entities that filed the motion sought to amendment the judgment so that they could pursue conjunctive use projects, which rely on in lieu and artificial recharge of the groundwater basin. Superior Court Judge Reginald Dunn rejected the request. He found that the judgment at issue was limited to the right to pump water and that storage was a different matter. Judge Dunn also determined that the water replenishment district had statutory authority to replenish and store water for conjunctive use. The 12 water pumpers appealed, and a unanimous three-judge panel of the Second District, Division Eight, upheld the lower court. Before addressing the pumpers' arguments, the court first held that underground water storage space is a public resource under Article X of the state constitution. That article requires that water resources be used in the public interest, and Water Code §100 and § 105 reflect this policy. "Most significantly, under § 105, underground water resources must be developed ‘for the greatest public benefit,'" the court ruled. The court then considered the pumpers' argument that the doctrine of "mutual prescription" created their right to unused groundwater storage space at the same ratio that they may remove water from the basin. The court ruled that the pumpers' right is to use of the water — not to storage space. "The doctrine of mutual prescription applies only if the use of the claimed right was actual, open, notorious, hostile and adverse to the original owner and continuous for the statutory period," Presiding Justice Candace Cooper wrote for the court. "Appellants bear the burden of establishing such element, and have failed to demonstrate any one. The motion concerned unused property that by definition was not continuously used in an open, notorious and hostile manner." The pumpers also argued that correlating storage rights to pumping rights was correct because storage and extraction are "hydrologically linked." But the court said there was no legal basis for this argument. "If appellants' theory were correct, adjacent property owners would have more control over their neighbors than nuisance law affords them, easement owners would have more control over the dominant tenement than property law affords them, and end water users would have more control over water extraction than water law affords them," Cooper wrote. "Extraction and storage are different physical processes; establishing a hydrologic link between them is not sufficient to show that a legal interest in one creates an interest in the other." Furthermore, the court held, the proportional allocation of storage rights does not guarantee beneficial use of the water or public accountability. The water replenishment district "is expressly authorized to store water for the purpose of replenishing the district," Cooper wrote, citing Water Code § 60221, subdivision (e). "Storing water for replenishment purposes is similar to storing water for conjunctive use." The court found no support for the pumpers' argument that the district's authority was limited to replenishing an annual overdraft. The Case: , No. B155143, 03 C.D.O.S. 5079, 2003 DJDAR 6434. Filed June 12, 2003. Modified July 9, 2003 at 2003 DJDAR 7591. The Lawyers: For Water Replenishment District of Southern California: Edward Casey and Paeter Garcia, Weston, Benshoof, Rochefort, Rubalcava & MacCuish, (213) 576-1000. For the water pumpers: Robert Saperstein and Russell McGlothlin, Hatch & Parent, (805) 963-7000.

With all of the static energy burning away in today's world, it's no wonder a growing number of communities want to stay in the dark. A handful of communities are working with educational organizations and lighting manufacturers to dim the lights in an effort to limit nighttime lighting pollution. And if the International Dark-Sky Association (IDA) succeeds in its ongoing public education campaign, more communities will be regulating the annoyance of lighting pollution. The problem is easily understood: Under the assumption that more is better, cities, road agencies and developers have been lighting up our urban areas, ostensibly to provide safety and visibility. But specialists on the topic tend to agree that less is actually more, from the standpoint of light pollution, safety and energy conservation. Though the problem of over-lighting is rampant, "I would say that the biggest offenders are cities," said Jack Sales, a California spokesman for IDA. Most cities still use drop-lens cobra-head luminaries with high-pressure sodium vapor fixtures to light streets and municipal yards. These lights produce an extraordinary amount of uplight glare, and are particularly inefficient at converting watts into lumens. The retro-style candle standards currently popular in neotraditional developments are another culprit because most do not restrict uplighting of the night sky. The major private property offender are the wall pack units used commonly to light industrial projects. Concern about light pollution is not a new phenomenon. The first generation of communities changed its practices about 20 years ago, according to Sales. These were usually in places associated with important astronomical observatories. In fact, the IDA was founded in Arizona, where observatories are central to research institutions in the Flagstaff and Tucson areas. In California, San Diego, the city most associated with both the Palomar and Mount Laguna observatories, and San Jose, near the University of California-operated Lick Observatory at Mt. Hamilton, were early leaders in using regulation to combat light pollution. In San Jose, the city converted a majority of its streetlights to LPS (low-pressure sodium) fixtures during the early 1980s. Even more interesting, the city worked directly with Lick Observatory astronomers to develop specifications. A few years later, the city required new or revised developments to use LPS lighting in parking lots. The current revival interest in dark sky ordinances, though, has more of a quality-of-life basis. According to Sales, this second generation of communities is combating light pollution for aesthetic reasons. In the war on sprawl, think of dark sky ordinances as the battle over lumen control. Interestingly, the new generation includes very different kinds of towns. The Los Angeles suburb of Calabasas, most famous for its steadfast fight against the Ahmanson Ranch development in the Santa Monica Mountains, adopted a dark sky ordinance during 2002. And 350 miles away, in a stunning perched valley of the Eastern Sierra, the Town of Mammoth Lakes adopted a dark sky ordinance in May. In Calabasas, the idea to adopt an ordinance came from Councilwoman Janice Lee, who began to ask questions about light pollution in 1999. She did her own research, and discovered the IDA and other information on the Internet. Then she launched a quiet campaign to educate her council colleagues and to direct staff studies. In Calabasas, the lost identity of a rural, coastal mountain town may have driven the ordinance, which seeks to preserve what little remains of that rural heritage. In Mammoth Lakes, a recognition of the economic value of tourism may have been an additional factor. "We just wanted to preserve a dark sky for our residents and visitors, so visitors could remember why they came up here." said Senior Planner Bill Taylor. As in Calabasas, the Mammoth Lakes ordinance was driven by little more than a personal interest of two decision-makers — in this case, Planning Commissioners Mike Telliano and Elizabeth Tenney. The ordinance has the typical restrictions on uplighting, and should result in a gradual retrofitting of street lighting with full-cutoff fixtures and an inventory of private lighting around town that does not meet the goals. The regulation met no resistance. Though not a movement that will take the planning world by storm, the dark sky advocates instead prove that simple solutions are worth pursuing and may result in incremental improvements in the urban experience. Expect the dark sky movement to emerge in communities that focus on, and value, their natural environmental setting.