Last year, the San Diego Association of Governments released the state's first Sustainable Communities Strategy, which Senate Bill 375 requires of California's metropolitan planning organizations. SANDAG officials hailed the SCS, coupled to its Regional Transportation Plan, as a bold step towards reducing sprawl and meeting the per capita emissions reductions targets that the California Air Resources Board had set.  Not so fast, say a group of opponents, including a coalition of environmental groups and Attorney General Kamala Harris. A coalition of environmental groups -- including the Sierra Club, Center for Biological Diversity, and Cleveland National Forest Foundation -- filed a lawsuit alleging that SANDAG's SCS not only fails to meet SB 375's greenhouse gas emissions targets but also violates the California Environmental Quality Act. Whereas SB 375 merely requires MPOs to meet greenhouse gas reduction targets, CEQA requires a thorough analysis of impacts and mitigation measures for all environmental issues, including air pollution and greenhouse gas emissions. On that count, plaintiffs say, SANDAG has fallen short.  The suit contends that SANDAG's SCS pays only cursory attention to SB 375's goal of reducing vehicle miles traveled through compact development and decreased use of single-occupancy motor vehicles. Most notably, the plaintiffs argue, the plan calls for the construction of new highway lanes at the expense of development of new rail lines and other forms of public transit and that it does so without the impacts analysis and mitigation alternatives that CEQA requires.  SANDAG planners contend that plaintiffs miss the point of the planned highway improvements. Most of the new lanes are planned as high-occupancy lanes, which will serve both carpools and public buses. Two highways that will be expanded for HOV lanes are I-15 and I-805.  "What we see is transportation planning resembling what we used to see in the 1960s," said Rachel Hooper, a partner at Shute, Mihaly & Weinberger and lead attorney for the plaintiffs, "emphasizing planning for the auto, freeway building and expansion rather than a focus on public transportation and transit." "I'm not sure whether they understand the fact that we're going to be running bus rapid transit on those lanes," said Charles "Muggs" Stoll, SANDAG's director of land use. "They just say, oh, you're investing in freeways." Harris joined the suit last month, thus setting up a confrontation between SANDAG and the state over what is arguably the most significant planning and environmental initiative of the next generation. Last year, Harris' office sent a letter with concerns about the draft SCS. SANDAG officials say that they responded to each of Harris' concerns, but "obviously not to the attorney general's satisfaction," said Stoll. Harris' office declined to comment for this article.  The outcome of the suit – whether it goes to court or whether SANDAG and plaintiffs can reach a compromise – bears heavily on the statewide effort to pursue sustainable regional plans.  "I think it says that it's sort of business as usual, which is exactly what SB 375 was intended to change," said Bruce Reznik, executive director of the Planning & Conservation League and former executive director of San Diego Coastkeeper. "Because it is first out of the gate, I think it's really important to set a good example for all the SCS's coming forward." "What we're concerned about in part is that their plan may set a precedent for the other SCS's that are emerging," said Hooper.  But MPO officials say it is the suit itself that sets a bad precedent.  "The worst thing that could happen to the implementation of SB 375 is to have these lawsuits, because the MPOs have made great progress in moving the thinking of our leaders," said Hassan Ikhrata, executive director of the Southern California Association of Governments. SCAG released its own SCS/RTP at the end of 2011.  Nonetheless, plaintiffs say that the SCS/RTP explicitly ignores that primary goal of SB 375.  "One of the major issues in our lawsuit is that the plan does not provide for mitigation for global warming impacts," said Hooper. "They could have required that their member cities adopt TOD policies…and they could have required their member agencies to adopt climate action plans."  Meant to accommodate a projected growth of over 300,000 households by 2050, the RTP/SCS calls for the investment of over $200 billion in new highway lanes, trolley lines, and infrastructure projects. Many of those highway miles are funded and mandated by TransNet, the 2003 initiative that imposed a half-cent countywide sales tax to fund certain transportation projects. SANDAG officials say that the TransNet program, which was envisioned well before SB 375 had been drafted – and, indeed, before compact growth became popular in California, constrains the RTP.  Most of the highway projects are slated to be built in the next decade, whereas many of the public transit projects are planned for the 2020s. Opponents say that these priorities are backwards—with 28% more spending on highways than on transit in the first decade of the plan—and that the construction of transit in the near term would stoke centralized, compact growth in the long term. The reverse, they say, simply is not going to happen. "They say that they're going to support transit," said Jack Shu, board president of the Cleveland National Forest Foundation. "That may be true in terms of some of the dollar figures, but …of the 15 trolley projects, half of them will take place after 2030." SANDAG's  RTP extends to 2050, SB 375's targets extend only to 2035. "It's a big challenge now because we have not done our job the past 30 years," said Shu, speaking of the region's low-density development. "That does not mean that we have to avoid that challenge now." Hooper said that the plan should have focused on transit in the urban core.  The suit is also something of a referendum on methods of regional planning, which relies on heavily studied, but often unproven, methods of modeling traffic and emissions. Plaintiffs say SANDAG's models include assumptions that are wildly off-base and, as a consequence, overstate the emissions reductions that will result from implementation of the SCS.  Hooper said that SANDAG assumes unwillingness on the part of high-income residents to ride public transit. This assumption, she said, leads to artificially low transit ridership projects, which in turn bias SANDAG towards highways.  Though methods of regional modeling are still evolving, SANDAG contends that its methodologies follow common practice in the SB 375 era.  "We've worked with all of the other MPOs throughout the state to assure that the methodologies that we're using are consistent among the regions," said Stoll. "We've worked with ARB staff."   Ikhrata said that MPOs have been developing their models "for the past 40 years" and that they have all been rigorously peer reviewed.  Ultimately, SANDAG planners say that plaintiffs and other opponents fail to understand how the SCS/RTP relates to the unique attributes of the San Diego region. Though opponents claim that the plan creates urban sprawl, SANDAG planners say that sprawl in the region is inherently contained by natural and political barriers: the ocean to the west, mountains to the east, and Camp Pendleton and the Mexican border to the north and south, respectively.  "We are a bit unique because we almost have a de facto growth boundary," said Stoll. "There's so much preserved in our county, that when you get to Sacramento, where there's nothing but farms as far as the eye can see, there's a lot more potential for that kind of thing to happen." Stoll said that opponents unfairly assume that the region's history of low-density development will simply persist even though SANDAG planners are confident that the region's culture is already changing. Most importantly, he said, the RTP/SCS plans for 85% of new housing to be multifamily—thus curtailing the sort of low-density, inefficient development that comes with single-family homes.  "There's very little suburban development planned for the next 40 years," said Stoll. "I think that's not well understood by the stakeholders who live outside San Diego." Stoll said that requirements such as TOD policies and climate action plans are not necessarily because most of the region's 18 jurisdictions are already, of their own accord, adopting general plans that promote compact development. The SCS, therefore, simply goes along with a trend that is already well underway.  Opponents, however, call this attitude a cop-out.  "They took the land use plans that were adopted by their jurisdictions and they threw up their hands and said, ‘we're not a land use planning agency….so we're going to build our transportation system around what's already in the plans of these jurisdictions,'" said Hooper. "We're saying that they could have done better." Just how much they could have done is a matter of debate, however. Because land use planning—as opposed to transportation planning—is generally a matter of local control, the authors of SB 375 hesitated to vest too much power in regional planning bodies.   "SB 375 clearly says MPOs have no authority over land use whatsoever," said Ikhrata. "With that in mind, you can't have such an ambiguous law and come back and say, 'well, you need to do more.'" Though many environmental groups may want SCS's in San Diego and elsewhere to strive for more aggressive curbs on greenhouse gas emissions, some remain anxious about suits such as the one brought against SANDAG.  "The reason you don't have 100 groups filing lawsuits is that they are worried about the chilling effect," said Reznik. "If you bring this suit against SANDAG, what happens to groups in like Bay Area and Sacramento who are trying to do a better job. Does this chill discussions and slow everything down?" Groups like SCAG, however, remain undaunted by SANDAG's challenges.  "I don't go to bed worrying about who is going to sue me," said Ikhrata. "I go to bed wondering if I did the right thing for the SCAG region. We all want SB 375 to be implemented and we all want it to succeed."  Contacts & Resources:  SANDAG RTP Website: www.sandag.org/2050rtp Rachel Hooper, Partner, Shute, Mihaly & Weinberger, LLP, 415.552.7272 Hassan Ikhrata, Executive Director, SCAG, 213.236.1800  Bruce Reznik, Executive Director, Planning & Conservation League, 916.822.5631 Charles "Muggs" Stoll, SANDAG, 619.699.1900 Jack Shu, Director, Cleveland National Forest Fondation

The Court of Appeal for the Second Appellate District affirmed a judgment following a jury verdict that found that a homeowners association complied with the California Solar Rights Act (Civ. Code, § 714) when it denied the application of property owners to install solar panels on a slope adjacent to their residence. In Tesoro del Valle Master Homeowners Assn. v. Griffin , defendants Martin and Carolyn Griffin were owners of property who sought to install a solar energy system at their residence in a development that is subject to conditions, covenants and restrictions. The CC&Rs provided that " here shall be no construction, alteration, or removal of any Improvement in the Project (other than repairs or rebuilding done by the Association pursuant hereto) without the approval of the Architectural Control Committee (ACC)." The Design Guidelines adopted by the HOA expressly provided the following architectural standards for solar energy systems, in relevant part: "As provided for in Section 714 of the California Civil Code, reasonable restrictions on the installation of solar energy systems that do not significantly increase the cost of the system or significantly decrease its efficiency or specified performance, or which allow for an alternative system of comparable costs, efficiency, and energy conservation benefits may be imposed by the Committee."  The CC&Rs and Design Guidelines listed the requirements for an application to the ACC, which included the submission of a plot plan drawn to scale, a detailed description of the proposed materials, a landscape plan and a drainage plan. The Griffins' application to the ACC for the solar system in this case did not meet those requirements. Their application contained only a handwritten drawing with a rectangle signifying the approximate location of the proposed solar panels; it did not contain information concerning the panels' dimensions, number or color; the setback; the proposed alterations to the landscaping; or the amount of electricity proposed to be generated. After receiving preliminary information from the HOA that the ACC would probably not approve their application, defendants received another bid proposal to install additional solar panels on the roof of their residence. However, defendants did not amend their application to include that rooftop installation.  The ACC did not approve the defendants' application, but instead provided comments on the application noting that the roof of the casita adjacent to defendants' residence should be considered as a location for the panels; that the project's dimensions and minimum setbacks needed to be provided on the site plan; that defendants needed to indicate how the slope beneath the solar panels would be maintained; and that defendants needed to submit photographs of the existing landscape and superimpose the proposed panel elevation. The ACC was concerned about the proposed slope-mounted system because it was at the entry to the neighborhood, adjacent homes had a direct line of sight, the CC&R's prohibited slope alteration and any alteration or landscape removal could impact drainage. The ACC expected that defendants would address those concerns and submit a revised application.   However, defendants went ahead and installed the solar panels on the roof, and then, after discussions between all of the parties, submitted a revised application for the entire project. The ACC approved the roof installation but again denied the slope installation. Defendants installed the solar panels on the slope anyway, and the HOA filed this action against defendants. Defendants filed a cross-complaint that generally alleged that the HOA failed to comply with both Section 714 and the CC&R's in denying the defendants' solar energy system application.  At trial, the jury found, among other things, that the HOA did nothing prohibited by the CC&R's or governing law. It also found that the HOA did not fail to do anything required by the CC&R's and governing law with respect to its consideration of Defendant's solar energy system; that the HOA did not breach the implied covenant of good faith and fair dealing; and that the HOA did not violate section 714; that Defendants failed to follow the CC&R's and governing law in connection with their solar energy system; and that Defendants were required to remove the 22 solar panels from their hillside slope.  Defendants appealed the judgment based on the jury verdict. The Court of Appeal affirmed. The Tesoro court heavily relied upon a similar Second Appellate District decision in Palos Verdes Homes Association v. Rodman (1986) 182 Cal.App.3d 324. The Tesoro court held that substantial evidence supported the jury's conclusion that the CC&R's imposed reasonable restrictions that were in compliance with Section 714. Not only did the Design Guidelines mirror Section 714, but an expert testified for the HOA at trial that, as an alternative to defendants' installation of 22 panels on their slope, defendants could install 16 to 20 panels in an area above the casita that would yield the same performance efficiency but have a 14 percent reduction in output, and it would be less expensive to install than the slope panels.  The court also held that the ACC could properly consider the aesthetic impact of a solar energy system in its determination whether to approve Defendants' proposed solar panel installation. The court further held that the HOA did not have the burden to propose a comparable alternative system at the time it denied Defendants' application. Instead, under the CC&R's, the burden was on the homeowner to submit an application that is complete and sufficient to generate approval of a solar energy system utilizing an application that both satisfied the procedural requirements in the CC&R's, as well as addressed the ACC's concerns about location, safety and aesthetics.  The Case: Tesoro del Valle Master Homeowners Assn. v. Griffin (October 3, 2011, B222531) ___ Cal.App.___. Ordered published Nov. 1, 2011.  The Attorneys: Law Offices of Michael L. McQueen and Michael L. McQueen for Defendants and Appellants. Greenberg Glusker Fields Claman & Machtinger and Ricardo P. Cestero for Plaintiff and Respondent. Glen C. Hansen is an attorney with Abbott & Kindermann, LLP, Sacramento

Linn Warren, 59, of Davis, has been appointed director of the California Department of Housing and Community Development. Warren has been a program director at the California Housing Finance Agency since 2010, where he served in multiple positions from 2009 to 2010 and from 1995 to 2006. He was a program advisor at the Sacramento Housing and Redevelopment Agency from 2008 to 2009 and a special advisor at the San Jose Department of Housing in 2007. He was vice president at First Nationwide Bank from 1990 to 1995.  Warren is a Democrat. This position requires Senate confirmation and the compensation is $150,112.  Warren succeeds Cathy Creswell, who recently announced that she would be stepping down.

As redevelopment agencies shut down last week, criticism shifted from the decision to dissolve them in the first place to the method by which they were dissolved. Assembly Bill X1 26 has been roundly decried as sloppy legislation that was, according to some potential scenarios, never intended to be implemented. Critics say that its provisions may hinder successor agencies' ability to make bond payments and that it includes ambiguous language that could leave projects in limbo.  To correct some of these alleged errors, last week, Assembly Speaker John Pérez (D-Los Angeles), along with six coauthors (all Democrats) introduced AB 1585. The bill would clean up certain provisions of AB X1 26. The bill makes various technical fixes to AB 1x 26 in an attempt to clarify the functions of successor agencies and oversight boards. The bill also seeks to protect affordable housing funds. Like SB 654, which seeks to protect over $1 billion in affordable housing funds, AB 1585 includes an urgency clause and will require a two-thirds vote.  Provisions of AB 1585 include: Changes to the "administrative cost allowance" to include temporary increases in order to carry out enforceable obligations. Temporary increases would be subject to oversight board approval. AB 1585 also specifies that employee costs associated with specific project duties are not included as administrative costs, but rather "project costs." Expansion of the definition of "enforceable obligation" to include any loans specific to a project area or other specified obligations including those between a city and redevelopment agency prior to Dec. 31, 2010. Any such obligations would be subject to oversight board approval prior to payment. Allowance of cities to retain responsibility for housing functions previously performed by the redevelopment agency, including low and moderate income housing. Housing funds must be kept in a separate account and at least 80 percent of the funds must be encumbered within three years. The League of California Cities, a which has led the opposition to the dissolution of redevelopment, calls AB 1585 "a step in the right direction towards addressing some of the concerns raised by cities."

Question: What is sound of urbanism in the California desert? Answer: The sound of birds chirping. Over outdoor loudspeakers.  A press release crossed our desk a few days ago, announcing that CT/KDF Community Development Partners has received funding to redevelop four existing retail buildings and make the entire shopping street sing – literally – with the sound of canned birdsong.  The developer's investment partner (known in some circles as a "lender") U.S. Bancorp Community Development Corp., plans to use $16.15 million from the sale of New Markets Tax Credits to redevelop Lancaster Promenade III, four properties along the new Lancaster Promenade, to be known henceforth as The BLVD (pronounced "bull-vid") in downtown Lancaster.   From the press release: "The BLVD is known for the calming sounds of bird chirping and singing, which have been piped in over 70 speakers for the past several months. The bird chirping, blended with calming synthesized music, is played five hours a day along a half-mile stretch of the boulevard. The piped-in music was the brainstorm of Mayor R. Rex Parris, who says that the chirps have a calming effect on the local population." Make a mental note to yourself: Birdsongs are brainstorms.  This proposal is innovative because sound, per se, is rarely used as a design element in urban areas. One possible exception, if memory serves, is the big barrel vaulted structure that covers historic Fremont Street in Las Vegas, which has a computerized light show with an ear-splitting soundtrack. For further examples, however, I'm stumped. Swallows, of course, play an important role in downtown San Juan Capistrano, by returning each year on the same day, but their melody is apparently unrelated to tax credits.    To my mind, the question is whether little, far-flung Lancaster should be allowed to monopolize the boon of piped-in sounds on public streets. Other California cities have the same right to commit public sound pollution. In the Inland Empire, for instance, which has the highest office vacancy rates in Southern California, we could have loudspeakers blaring the sound of wind whistling through empty spaces, in a creepy way. (Whooo-ooo-ooo!) In high end shopping district of Union Square in San Francisco, we could broadcast the sound of cash registers. (Ka-ching!) In the Pechanga casino outside Palm Springs, we could replicate the sound of a winning slot machine. (Bing-bing-bing, clunk-clunk-clunk-clunk.) And in Sacramento's Old Town, a historic recreation of the city during Gold Rush days, we could pipe in the sounds of a grizzled miner clearing his throat and….  Well, maybe not. But as for the sound of birds, forget it. Lancaster got there first. The "BLVD" in Lancaster. Birdsongs not included in photo.

Even though I'm a professional planner and am familiar with the gritty details, I find model cities appealing because they allow me to examine a city from angles and perspectives not possible in real life. The idea of building a city comprehensively from scratch is exciting, especially when compared to the incremental, piecemeal, and fragmented approach to planning most of us have grown accustomed to.  This sort of fantasy is on full display in Metropolis II, a dynamic kinetic sculpture by artist Chris Burden, currently showing at the Los Angeles County Museum of Art.   Metropolis II features miniature cars that race through the city at 240 scale miles per hour; this means that every hour, the equivalent of about 100,000 cars circulate through the dense network of buildings. Steel beams form an eclectic grid interwoven with a complex system of 18 roadways, including a six-lane freeway and train tracks.  Not only is this sculpture a sight to see, it also features the noise of the zooming cars efficiently captures and communicates the busyness and sometimes craziness of city living.  In Burden's words, "The noise, the continuous flow of the trains, and the speeding toy cars, produces in the viewer the stress of living in a dynamic, active and bustling 21st Century city." Traditional architectural models of future projects or even the impressive models of major cities at Legoland are static, and lack the energy and vibrancy generated by Burden's piece. He suggests that motion is as much a part of a city as form is. As a park planner, I was initially disappointed that Metropolis II does not include any parks or open space.  Although the piece could represent a variety of cities and not just Los Angeles, I even thought Burden could have made the point that Los Angeles is one of the most park-poor cities in the country with Metropolis II.  In fact, Burden represents nature by the use of different colored panels that the buildings rest on.  Thus, while abstract, the green, brown, or light tan panels may be perceived as the parks, open spaces, or recreational areas that contribute to the vitality of any city. Abstract though it may be, this sort of representation suggests, rightfully, that open space is a crucial part of any city, even if buildings and vehicles seem more exciting.        While I spent much time marveling at the wide variety of buildings, Metropolis II is actually more about transportation and mobility than architecture.  It is a representation of Burden's dream of a future city where cars can go faster and are completely automated, as envisioned by projects such as Google's driverless car project.  The buildings were only put in after the car-racing tracks had been installed and the entire kinetic sculpture was operational.         The process and approach Burden took to create Metropolis II is refreshing and admirable because he was able to consider the city in its entirety.  Unfortunately, planning in reality has become fragmented, with planners specializing in particular fields (like transportation, land use, parks) and not necessarily working collaboratively due to bureaucratic and other factors.     Two of the biggest ongoing challenges for us planners are communicating clearly with the public and maintaining interest on important planning issues.  Obviously, through Metropolis II Chris Burden has achieved both, as evidenced by the great turnouts at LACMA and the extensive media coverage.  Part of the appeal of Metropolis II can certainly be attributed to Burden's reputation as the well-known artist who created installations like Urban Light (which is displayed at the entrance to LACMA).   Nevertheless, this does not mean that planners cannot attract or engage large crowds at urban planning events without Burden's participation.  On the contrary, the popularity of Metropolis II should challenge all of us to rethink current practices and pursue innovative ways to involve community members in planning.  For example, James Rojas' interactive planning approach through the use of model building has proven successful in engaging the public and encouraging creative city-making.  Having participated in a Rojas-led exercise before, I understand firsthand how this approach empowers participants by allowing them to shape and share visions in a supportive environment without the fear of providing a "wrong" answer. Metropolis II is open for viewing on Fridays, Saturdays, and Sundays.  For show times and more information, visit: http://www.lacma.org/art/exhibition/metropolis-ii Clement Lau is a planner with the L.A. County Department of Parks. Photos by Julie Yom.

Government Code Section 65589.5(j) which, among other provisions, requires a city or county to adopt findings justifying the denial or density reduction in circumstances in which the project complies with "applicable, objective general plan and zoning standards and criteria, including design review standards." This code section was added in an effort to tighten down the discretion exercised by local officials when acting on a housing project application. It is codified as part of the Housing Accountability Act. A companion code section places the burden of proof on the city or county  (Government Code Section 65589.6.).  The facts of H onchariw v. County of Stanislaus decision are relatively simple. Nicholas Honchariw applied for a tentative map approval for an eight-lot subdivision in unincorporated Stanislaus County. The local water district agreed to provide service to one lot where it already had a service connection, but issued a "will not serve" letter with respect to the balance of the proposed project, which was located within its service boundaries. The developer proposed drilling individual wells to serve the remaining seven parcels.  The county code, however, provided that all lots had to connect to a public system, "when available." Staff recommended that the applicant apply for an exception from this code provision, which he did. The planning commission denied the request, and on appeal, the Board of Supervisors denied the map request and the exception request. The board denied the map pursuant to the findings set forth in the Subdivision Map Act, that the site was not physically suitable as it would cause split zoning, and that the septic tanks were close to an existing pond and canal.  Having found the project to be noncompliant, the supervisors declined to adopt the findings under Section 65589.5. Honchariw filed a writ. The Superior Court denied the writ, concluding that the Section 65589.5 findings were not required as project did not meet applicable development standards. Honchariw appealed. On appeal, the county first argued that Section 65589.5 had no applicability as the project was not an affordable project. After reviewing the legislative history, the appellate court concluded that while affordability or other qualifications apply to other provisions of Section 65589, that is not an element of paragraph (j). Turning next to the substantive argument, the appellate court then ruled for the appellant, Honchariw. The appellate court rejected the county's characterization that the tentative map was noncompliant with the county regulations pertaining to a public water connection.  In so ruling, the court sidestepped the question of whether or not the connection policy qualified as "design review standard," but instead concluded it was a requirement which applied at the home building stage, not the subdivision stage, and therefore was not an "applicable" standard. The appellate court then determined that the denial of the exception did not mean a lack of compliance with the ordinance. The appellate court noted that the burden of proof fell on the county (Government Code section 65589.6), and as the record lacked the requisite findings, the appellate court remanded the matter back to the Board of Supervisors for further proceedings.  This does not mean that Honchariw will be able to proceed with the project. That will turn on the subsequent findings adopted by the county. Commentary This case turns largely on the court's interpretation of the county's development policy as to when the connection requirement is applicable (tentative map, final map or building permit). Local officials, when drafting general plan policy and development regulations would serve themselves well by making clear what the timing triggers are for various policies. The next domino likely to fall under this code section will be what happens to a housing project application which complies with "objective" standards, but is otherwise inconsistent with broader statements of policies found in the general plan which in the case of a non residential project, could be readily disapproved. The question of what policies and development requirements are "objective" and potentially require Section 65589.5 findings is a factually specific inquiry, unique to each city and county, with an added variable dependent upon the particular application then pending before the decision makers.  The Case: Honchariw v. County of Stanislaus  (Nov. 14, 2011, F060788)  ___ Cal.App. 4th ___. Filed Nov. 14, 2011. Ordered published Nov. 14, 2011. The Attorneys:  Nicholas Honchariw, for Plaintiff and Appellant. Porter Scott, Carl L. Fessenden, Kristina M. Hall and Ashley M. Wisniewski, for Defendants and Respondents. William W. Abbott is a partner in the law firm of Abbott & Kindermann , LLP, of Sacramento.

San Diego politicians and land-use officials have become polarized over an unusual controversy pitting one of the city's largest private employers against an apartment developer in the city's downtown area. At issue is whether the proposed Fat City development in the Little Italy neighborhood threatens the operations of nearby Solar Turbines.  Solar is a unit of Caterpillar Corp. that employs 3,800 workers in a plant on the city's industrial waterfront, plus an additional plant in Kearny Mesa. The company has argued that the proposed Fat City apartment project, located 240 feet from the plant, could result in air-quality complaints from future residents, and threaten its operations. Solar appears especially anxious because it plans to install new spray booths and other equipment that could conceivably boost its emission levels. Any complaint, according to the company, could trigger a new air quality assessment of the plant, at a cost of $100,000.  A consultant to the developers, who asked not to be named, speculated that Solar had already spent as much or more on a "phalanx" of lawyers and lobbyists. This is the latest in a series of instances around California in which an existing institution has expressed concern over its environmental impact on a new project, rather than vice-versa. Recent court cases, in Los Angeles and in Dana Point (see CP&DR Legal Digest Vol. 26, No. 22  Dec. 2011), have held that the California Environmental Quality Act does not require a developer of a new project to consider this role reversal. However, in San Diego, Solar is not threatening legal action; it is threatening simply to move away of its own accord – even at its own expense.  Solar has taken an all-or-nothing position, rejecting several compromise measures, and even threatens to leave the city if the 242-unit project is approved. Public hearings in January featured a long line of Solar employees pleading with board members of the Centre City Development Corp., one of the city's former redevelopment agencies, to reject the project.  Several local officials, including the San Diego County Board of Supervisors and even the county's Air Pollution Control District of San Diego County (APCD) are backing the manufacturer. APCD director Bob Kard told reporters in January that he had never experienced a situation with housing and industry side-by-side that did not generate complaints.    The homebuilders, architect-developer Jonathan Segal and Garth Erdossy, and their lawyers claim that Solar has little or no reason to fear the new project. Although the plant currently operates within 400 feet of existing housing in Little Italy, where Segal and Garth have built several multifamily complexes in the past decade, no local resident has ever filed a complaint against Solar. Of the three types of air pollution regulated by APCD – smoke, dust and odor—none seems to apply the Solar plant. The plant site is entirely paved and dust-free, and the building, which has no smoke stacks, emits neither smoke or smell.  "I've bicycled by there every day for 20 years, and I've never smelled anything," said Richard G. Opper, an environmental attorney representing the home builders. He added that Solar's emission levels have actually fallen 80 percent as compared to an initial air quality assessment conducted on the plant decades ago, due to the installation of improved air-scrubbing technology.  The apartment developers argue that the city has no basis to deny the project, which conforms to existing zoning for residential use.   "The reason they've (CCDC) been so successful in San Diego in the last 10 years is that the city has done such a great job of making the process transparent, predictable and consistent," said developer Garth Erdossy, president of GLJ Partners, who seeks to build the project in partnership with architect Jonathan Segal. "Investors have flocked to San Diego because of this." Erdossy points out that a car painting shop, with both odor and noise, operates immediately next door the existing Waterfront Lofts in the same neighborhood, without eliciting complaints.  The developer said he and Segal have offered several compromises to appease Solar, including requirements that renters sign waivers on air-quality issues, and offering to negotiate any complaints about the plant directly with Solar, rather than refer complaints to the APCD. The developer also offered a land-swap with the city, in which the developer would switch locations with a public parking structure planned about 1,000 feet from the Solar plant. The company reportedly rejected all the offers.  On January 25, the board of the Centre City Development Corp. rejected the housing proposal by a 4-2 vote, with three abstentions. Board member Laurie Black resigned in protest, although she told the San Diego Union-Tribune that the demise of redevelopment was also a cause for leaving the board. A final decision rests with interim Centre City president Kim John Kilkenny, although any decision he makes is likely to be appealed to the city's Planning Commission.  UPDATE:  Citing the project's inconsistency with the 2008 City of San Diego General Plan Economic Prosperity Element and the Centre City Community Plan, CCDC Chairman Kim John Kilkenny today denied the Coastal and Centre City Development permits for the proposed Fat City Lofts project. The entire decision, findings and analysis is now posted on CCDC.com under the News section.  Kilkenny offered the following statement. "After extensive evaluation, my decision is based on a few key factors. Neither the City of San Diego's General Plan nor the 1992 Centre City Community Plan establishes the proposed residential project as a land use that must be approved as a matter of right, but rather a use that may be approved depending on an evaluation of its conformance to General Plan and Community Plan policies. In my judgment, the proposed project is inconsistent with the General Plan's Economic Prosperity Element Policy and Centre City Community Plan, which recognizes that base sector industries should be protected and land use inconsistencies should be avoided. The construction of a residential project close to Solar Turbines would result in increased regulatory burdens which may jeopardize Solar Turbines' continued operations." Kilkenny's decision is appealable to the San Diego Planning Commission, but not the San Diego City Council.

Towards the waning moments of yesterday's UCLA Extension Land Use Law and Planning Conference in downtown Los Angeles, I was on the verge of deploying the following tweet via @Cal_Plan :  "Ucla Land Use Law Conf: am in a roomful of lawyers and all seem in accord: no one has voiced support for death of #redevelopment" I'm not even sure if Twitterese would have fully conveyed the seeming irony. In session after session, lawyers -- they of eternal contentiousness -- on the dais and in the audience alike bemoaned nearly everything about the death of redevelopment, decrying its very fact and, moreover, the sloppy -- and, indeed, inadvertent -- method by which the Legislature and governor sealed its fate. The closest anyone came to celebrating the implementation of Assembly Bill X1 26 was when they spoke of the chance for reform.  Even the redevelopment panel itself, featuring Housing Finance Agency executive director Claudia Cappio, former CRA/LA head Cecilia Estolano, attorney Iris Yang, and Fullerton community development director Al Zelinka was a strangely harmonious affair, full of the usual criticisms and of some compelling ideas for the future but with little actual debate. In truth, I think everyone is worn out -- and it was only Day Three since dissolution officially set in. In any event, if we ever sort this out, it would seem that sustainability and economic development are in and blight is out (legally, if not practically). I'm glad I didn't tweet too soon. During Q&A, Frank Gruber, an attorney and journalist based in Santa Monica, addressed the panel with, shall we say, a contrarian viewpoint. It's worth it just to quote him verbatim:  "I don't want to sound ungrateful for a great panel, but it does seem that it would have been good for this panel to have someone who is not mourning the demise of redevelopment. For a lot of us redevelopment was not a solution to a problem." "I never heard of a CRA that ever bothered with...metrics about creating middle class people. When (a panelist) said that we need government that is clear and explanation, CRA was the exact opposite. It was the kind of thing that made people suspicious of government because they just saw all this money being skimmed off and given to developers. Middle class people leave cities. They've left cities for 50-plus years because of the schools. Did the CRA ever do anything for the schools?  I remember being at a conference in 2003 when all of a sudden somebody from CRA said, 'yes, we're now working with the school district'--given that they raised $14 B in bond money." "When you think of all the irrationality that this kind of funding brought, and of course stealing the money from the county and school districts. there's nothing to stop the Legislature in Sacramento from saying…'we want 5% of all tax increment around the state to go into affordable housing,' rather than just take back the 20 percent that you were going to steal. They can do that. They can enact all sorts of funding with a rational basis for where the money comes from. All these cities are now going to get more general fund money; they can decide what they want to do with it. There's no reason to mourn redevelopment." "Jerry Brown: What a great guy. To have been a city guy and used it and realized how corruptible it was and to get rid of it." After some hemming and hawing by the panel – who reiterated hopes for a renewed, reformed system of redevelopment – Joel Rosen, community development director, City of Buena Park, offered a rebuttal to Gruber:  "I am mourning the loss of redevelopment. Redevelopment was transformation for our community, and it was transformative for many communities across the state. Were there abuses? No question. But this was a money grab. This was not about redevelopment." "I would propose something more radical: it's not about finance structure; it's about governance structure.  We need to reform governance in California. We have too many school districts, too many special districts, too many overlapping jurisdictions. There's probably a lot of money in the system."   "I would argue that redevelopment was an incredible tool for 50 years. I am mourning its loss. I am mourning the loss of friends who are losing their jobs." Ashes to ashes, dust to dust.

This week, as redevelopment agencies were shutting down in observance of yesterday's dissolution deadline, the State Senate approved a bill that would preserve former redevelopment funds that had been dedicated to the provision of affordable housing for low- and moderate-income residents. Senate Bill 654, sponsored by Sen. Darrell Steinberg (D-Sacramento), passed on a vote of 34-1. It now advances to the Assembly Housing and Community Development Committee and then to the Assembly Appropriations Committee. The bill would preserve an estimated $1.36 billion currently in the coffers of former redevelopment agencies (now successor agencies) that were earmarked for affordable housing. Municipal and county housing authorities or other approved entities can receive the funds from their respective successor agencies. Without passage of the bill, those monies would go back to the state and localities would lose what many consider to be a crucial source of subsidy for the development of affordable housing.  While housing advocates and many lawmakers have hailed the vote, they have expressed frustration that Senate Republicans refused to support the bill as an urgency measure. Therefore, rather than take effect upon the governor's signing, SB 654 would not take effect until Jan. 1, 2013. Democrats had refused to support a version of the bill that included some measures to streamline the process of dissolving RDAs.  Amid partisan tit-for-tat, Steinberg complained that the lack of an urgency measure could cost over 20,000 jobs related to affordable housing. Senate Republican leader Bob Huff (Diamond Bar) noted that it was Democrats, led by Gov. Jerry Brown, who pushed for the elimination of redevelopment in the first place. Many supporters of redevelopment have claimed that it maintained and created countless jobs throughout the state.  Steinberg has said that he may try to re-insert language that would implement SB 654 immediately upon signing.

Today ostensibly marks the end of redevelopment in California, when no new projects may begin and no new agreements may be forged. But that's how it's been for nearly a year, ever since Gov. Jerry Brown announced his intent to do away with redevelopment and made repeated assurances that the state would not allow agencies to shield assets or rush into agreements before his proposed deadline. Since then, agencies have been quivering, hoping for a reprieve but doing very little by way of redevelopment.  By turning themselves over to successor agencies today, redevelopment agencies essentially become accounting firms: poring over their books, figuring out their assets and liabilities, and submitting to the approval of oversight boards -- one seven-member committee for every defunct RDA -- to ensure that funds are disbursed to either the state or to legitimate creditors.  "It's a new tack on February 1," said Jean Hurst, lobbyist with the California State Association of Counties. "Instead of planning for projects and executing projects, it's going to be more, ‘Let's figure out where we are financially. Let's figure out what our debts and contracts are.'"   Redevelopment agencies are, therefore, not going to disappear overnight.  "I think the keys will still work and the computers will turn on," said Hurst.  Though the transformation will take place largely on paper, is not expected to be easy.  Assembly Bill X1 26 enumerates the roles and obligations of successor agencies, oversight boards, and other entities involved with the dissolution of RDAs. Since Dec. 27, a host of entities has been rushing to interpret the regulations outlined in AB X1 26 and turn them into actionable items. The state Department of Finance, State Controller, CSAC, and California Redevelopment Association have all published interpretations of what AB X1 26 means for successor agencies as of Feb. 1. Those discussions have, many say, been fruitful.  "I think it's fair to say that we were a little caught off-guard by the case and by the timeframe that we had to figure out what our role is," said Jean Hurst, lobbyist for CSAC. Counties are, in many ways, on the front lines of the dissolution. It is up to each county assessor-controller to scrutinize redevelopment agencies' books and help determine how to allocate their former tax increment funds.  "The hardest part of this whole thing is going to be the flow of revenues from the counties to the successor agencies to make sure we get that right," said Marty Coren, a consultant who is chairing one of the CRA's technical advisory committees. "There's a lot of ambiguity so we're trying to figure out common-sense approaches to make it work."  Coren said that determining the dissolution process has required an uncommon amount of collaboration among state and local entities. The goal, he said, has been to come to a common understanding of what the law requires so that once it goes into effect all parties at least have a baseline set of principles from which to operate.   "We had some areas of disagreements," said Coren. "It's not either side is right or wrong, but there are different ways to interpret things."  Coren said that one of the most puzzling questions from AB X1 26 concerns the definition of a "special district" for the purposes of forming oversight committees. The law does not indicate whether it refers to special districts that are dependent on or independent of other jurisdictions.  By May 1, oversight committees are to be formed to govern the successor agencies. The legislation dictates that each oversight committee consists of seven members. Those seven members are appointed by: the mayor of the local jurisdiction, the county board of supervisors (two members, one of whom must be a member of the public), the largest special district with an interest in the RDA area, county supervisor or board of education, the chancellor of the California Community Colleges, and a member of the RDA's former association of employees. Despite the specificity of the recipe for constituting an oversight committee -- and of the centrality of oversight committees to the dissolution process and the accurate disbursement of funds -- AB X1 26 does not actually indicate how they are to be formed.  Successor agencies may thus have to lobby for the formation of their own oversight committees.  "There's no guidance in the legislation," said Coren. "But what we're telling our clients is that as a successor agency go ahead and contact the county and school board and call a meeting and that will get it started."   Some are anxious that oversight committees will have the expertise needed to parse the finances of redevelopment agencies, with operate differently from almost all other public entities.  "Up until now RDA's were responsible for tax-sharing agreements…a lot of counties did not get involved with that," said Coren. "Now, overnight committees are going to have responsibility for 100 or more tax-sharing agreements and they're not set up to do that."  Hurst noted, though, that county assessor-controllers have experience from their involvement with the ERAF payments of previous years. They will, however, now have a massive addition to their workload.  "Los Angeles County has 71 redevelopment agencies, so it's going to be an issue," said Hurst. "We don't have the ability to decline the responsibility, so we have to make it work." Brent Hawkins, an attorney who has represented the League of California Cities on redevelopment matters, is similarly pessimistic about Los Angeles County's ability to handle the workload.  "The task of inventorying all of those agencies and getting it done by sometime this summer, while taking care of everything else they're supposed to be taking care of—I don't know how they're going to do it," said Hawkins. Hawkins added that he was also concerned that county staff in rural counties with few RDAs may not have the requisite experience. He said that the state was unlikely to provide meaningful assistance because "The state doesn't have any expertise; redevelopment is a local program."   Making it work, according to Coren, entails a tremendous amount of collaboration, even though different entities may have different feelings about the demise of redevelopment. Cities have deplored it, while counties, which may reap more in property taxes, have not been so opposed.  "The best thing we can have going forward is to work cooperatively with the counties and the other taxing entities," said Coren. "There's a loss of a sense of entitlement by some of the cities. We've got to overcome that and make the best of what's being presented." Others are not so optimistic. "I think this is going to be a slow-motion train wreck," said Hawkins. "Some people think the sun isn't going to rise tomorrow. I don't think that's going to be the case."

The California Supreme Court's decision to strike down AB X1 27 and uphold AB X1 26 set off a frantic timeline by which redevelopment agencies essentially must preside over their own funerals while "successor agencies" take control of their assets and contracts. Since the Dec. 29 court decision, at least one legislative effort -- Senate Bill 659 -- and two lawsuits have tried to delay dissolution, but to no avail. As such, the following timeline and benchmarks will govern the closure of redevelopemnt agencies and the ascent of successor agencies and their oversight boards for as long as is required to liquidate agencies' assets, tend to legal matters, and pay off their debts.    January 13 Counties that do not wish to serve as "successor agencies" and instead want to pass those duties on to the state must notify the County Auditor-Controller.  February 1 Redevelopment agencies are officially dissolved.  Successor agencies have the option of retaining RDAs' affordable housing functions or passing those functions off to local housing authorities or, in some cases, to the State Housing Authority.  Each successor agency must review its respective RDA's interim enforceable obligation payment schedule (EOPS), which outline the RDA's contracts and obligations. Successor agencies may modify their EOPS and may thereafter only make payments outlined in the EOPS.  March 1  Each successor agency must adopt a permanent Recognized Obligation Payment Schedule (ROPS), which succeeds the EOPS. Each County Auditor-Controller will allocate property tax increment to pay obligations enumerated in the ROPS.  April 1 Successor agencies report to the state on whether the amount of tax increment identified by the County Auditor-Controller is sufficient to fund ROPS obligations for the next six-month fiscal period.  April 15 Successor agencies submit their respective ROPSs to the State Dept. of Finance and State Controller for approval.   May 1 Oversight boards are formed and must file membership with the Dept. of Finance. Successor agencies henceforth must pay obligations in the approved ROPS; no other obligations may be paid.  May 16 and onward County Auditor-Controllers transfer funds to the successor agencies' Redevelopment Obligation Retirement Fund for payment of obligations described in the ROPS.