OK, I'm totally obsessed with www.walkscore.com . This is one of those Google map manipulations – created by three Seattle residents – that allows you to plug in any address and get a walkability score of that location somewhere between 0 and 100. (It also shows you a map of all the businesses and services in close proximity to your address.) It's obsession-inducing because, if you're a place-oriented person, it isn't long before you are plugging in the address of everywhere you've ever lived or worked, along with the address of your siblings, cousins, ex-girlfriends, etc. The result is kind of a Rorschach test of place and pedestrian orientation. I discovered, for example, that I have never lived in a residence with less than 60 score (kind of walkable) and mostly I've lived in places with scores in the 70s and 80s (very walkable). The lone exception was the suburban home where I lived when I was married, which scored a 2! But it's illuminating if, like those of us around here, you're a planner who thinks constantly about what makes people walk versus what makes them drive. Because the scores are based entirely on the proximity of the address to a variety of businesses and services – such as grocery stores, restaurants, coffee shops, movie theaters, libraries, drug stores, fitness centers, and so forth. Walkscore doesn't account for urban design. If there's a river or a freeway in between you and that coffee shop a quarter-mile away, that doesn't count. If there is 43% slope uphill to get to the grocery store, that doesn't count either. This "flattened" approach to location really highlights one of the burning issues in planning: Is it services and functions that make people walk, or urban design? Planners and designers often seem to favor urban design, whereas economists and other skeptics tend to say it's proximity to businesses and services. It appears that the answer, not surprisingly, is both. Los Angeles is a great example of this dichotomy. L.A. is very densely built and things are in extremely close proximity to one another, but because of wide arterials and other barriers, you often can't get there from here on foot. Valley Vista Boulevard in Sherman Oaks, for example, scores a 72. But if you look at the resulting map, you'll see all the nearby businesses and services line Ventura Boulevard. You may or may not be able to actually walk to all those locations. So, Walkscore highlights the challenge of urban development in California: All the stuff is close-by, so how do you rig things up so you don't actually have to drive? PS: The Solimar office scores a 94. That means we're in a "Walker's Paradise," according to Walkscore. Of course, our score is helped by the following facts: • The nearest bar is conveniently located in the front of our building; • The nearest restaurant is the Burger King across the street; and • "The Adult Store," located three blocks away, counts as a bookstore. - Bill Fulton

One city's municipal services agreement with an Indian tribe has survived a legal challenge while another city's agreement has been struck down by an appellate court. The Fourth District Court of Appeal upheld Hesperia's municipal services agreement (MSA) with the Timbisha Shoshone Tribe. The agreement called for the city to provide police, fire, water and sewer services to the tribe's proposed casino, which would be within the city limits. The court rejected arguments that the MSA violated the Community Redevelopment Law's prohibition on providing assistance to a casino. Meanwhile, the Third District Court of Appeal rejected the City of Plymouth's MSA with the Ione Band of Miwok Indians. That deal called for the city to provide water, sewer and fire service, and to turn over a road to the tribe, which also intends to build a casino. The Third District ruled that the MSA should have undergone environmental review because it committed the city to certain actions. The MSAs have been controversial in both cities, perhaps more so in Plymouth, where voters recalled three elected officials because of the deal. In both cases, the tribes have asked the secretary of the interior to accept lands acquired by the tribes into trust so that the tribes may develop casinos. The City Council in the high desert city of Hesperia approved the MSA with the Timbisha Shoshone Tribe four years ago. Hesperia's redevelopment agency is a party to the MSA, as the proposed casino would be built inside the redevelopment project area. Casino opponents gathered enough signatures to force a referendum election on the agreement, but voters upheld the MSA. Hesperia Citizens for Responsible Development then sued the city, arguing that it had violated the Community Redevelopment Law (Health and Safety Code § 33000 et seq.) and had unlawfully surrendered the city's sovereign authority. San Bernardino County Superior Court Judge Stanford Reichert ruled for the city, a decision upheld by a unanimous three-judge panel of the Fourth District, Division One. Health and Safety Code § 33426.5 prohibits redevelopment agencies from assisting "directly or indirectly" any business that involves gambling. Citizens argued that the redevelopment agency was providing assistance by endorsing the tribe's application to the secretary of interior and by ceding land use control and revenue to the tribe. The court rejected the arguments. While the city itself might provide assistance to the tribe, the redevelopment agency would not, as the agency does not provide water, sewer, police or fire services. "There is nothing in § 33426.5 that suggests that redevelopment agencies cannot be parties to contracts in which other governmental entities provide assistance to gaming entities," Justice Cynthia Aaron wrote for the court. Any loss of control or revenue, Aaron continued, would be a function of the property becoming trust land for the tribe, not of the MSA. The court also rejected arguments that the city should have insisted that the tribe abide by redevelopment law mandates, such as setting aside 20% of tax increment for affordable housing and adopting non-discrimination policies. "Citizens has not identified any obligation in the Community Redevelopment Law that requires the agency to insist on such terms for all developments occurring within a redevelopment area," Aaron wrote. As for the city relinquishing authority, the court again determined that any loss of authority would be the result of the land going into trust, not of the MSA. The lawsuit over the Plymouth MSA was different. In 2004, the council in the small Sierra foothills town agreed to provide water, sewer and fire service, and to abandon a road where the Ione Band's proposed casino and hotel would be located. In exchange, the tribe agreed to pay the city $5.85 million in one-time fees and infrastructure costs, and $3 million annually for maintenance and service. Several months later, voters recalled the mayor and two councilmembers who supported the MSA. In addition, Amador County and a group called No Casino in Plymouth sued, contending that the MSA was subject to the California Environmental Quality Act (CEQA). Judge Glenn Ritchey Jr., a retired Stanislaus County Superior Court judge, ordered the city to set aside the MSA because it had not undergone environmental review. The reconstituted City Council declined to pursue an appeal, so the Ione Band took up the appeal. The tribe offered numerous arguments that the MSA was not a "project" within the meaning of CEQA, and that the city's adoption of the MSA was not approval of a project. The tribe argued that the MSA was simply an intergovernmental agreement between a tribe and a city government, which is expressly not subject to CEQA. The court disagreed. The MSA committed the city to building sewer and water connections, remodeling a fire station so that it may be staffed 24 hours, and vacating a road. Those are activities that "could produce a physical change in the environment subject to CEQA," the unanimous three-judge panel ruled. The court rejected the tribe's contention that the casino (or "gaming development") was the project, not the MSA. "The public works and road vacation constitute a project subject to CEQA and the MSA constitutes the approval or contingent approval of the project," Justice Coleman Blease wrote. "That the tribe could itself provide the municipal services required by the gaming development is irrelevant so long as the MSA is in effect." According to Third District, the MSA is not like the memorandum of understanding that the City of Rohnert Park signed with the Federated Indians of Graton Rancheria and which was upheld as exempt from CEQA in Worthington v. City Council of Rohnert Park , (2005) 130 Cal.App.4th 1132 (see CP&DR Legal Digest , October 2005). The Rohnert Park MOU called for the tribe to make "voluntary contributions" to the community in exchange for the city not opposing a proposed casino. In addition, the MOU did not obligate the city to undertake specific construction projects, and the agreement acknowledged that CEQA review might be required if the city were to provide infrastructure. In addition, the statute (Government Code § 12012.40) excluding city-tribe agreements from CEQA only applies when a tribe has signed a compact with the state and the federal government has taken lands into trust for the tribe. Neither has occurred for the Ione Band, the court noted. Another lawsuit over the proposed casino is just getting started. Earlier this year, Amador County sued the U.S. Bureau of Indian Affairs for approving the Ione Band's status as a "restored tribe." The county requested that the bureau halt consideration of the tribe's land request. First Case: Hesperia Citizens for Responsible Development v. City of Hesperia , No D049614, 07 C.D.O.S. 6245, 2007 DJDAR 8069. Filed May 30, 2007. The Lawyers: For Hesperia Citizens: C. Robert Ferguson, (909) 482-0782. For the city: William Hauck, Covington & Crowe, (909) 983-9393. Second Case: County of Amador v. City of Plymouth , No. C050066, 07 C.D.O.S. 4140, 2007 DJDAR 5253. Filed April 17, 2007. Modified May 10, 2007 at 2007 DJDAR 6643. The Lawyers: For the county: Martha Jeanne Shaver, county counsel, (209) 223-6366. For the Ione Band of Miwok Indians: Paul Workman, Holland & Knight, (213) 896-2400.

Two recent court decisions have helped clear the way for the largest water transfer ever contemplated in the United States: 300,000 acre-feet of water from the Imperial Irrigation District to San Diego, Los Angeles and the Coachella Valley. In a federal court lawsuit, the Ninth U.S. Circuit Court of Appeals ruled that the Tax Relief and Health Care Act of 2006 exempted a water canal improvement project from federal environmental laws. The lining project is necessary to preserve water that would be transferred to San Diego. In state court, the Third District Court of Appeal threw out on technical grounds a suit filed by Imperial County that contended the environmental impact report for the water transfers was inadequate. The court determined that Imperial County did not name two "indispensable parties" when it filed the lawsuit. The federal court litigation over environmental issues turned on the 274-page omnibus tax bill passed in December 2006 by a lame-duck Congress. The bill contained a "rider" that requires the secretary of interior to carry out "without delay" the lining of the All American Canal "notwithstanding any other provision of law." The canal carries water from the Colorado River to the Imperial Valley. According to the Ninth Circuit, the budget act made moot the legal challenges filed by environmentalists and Mexican nationals based on the National Environmental Policy Act (NEPA), the Endangered Species Act, the Migratory Bird Treaty Act and the San Luis Rey Indian Water Rights Settlement Act. Project opponents contend that lining the canal with concrete will destroy habitat and farms that are sustained by seepage from the earthen canal. "If Congress had intended for the lining project to proceed under the usual course of administrative proceedings, it would have been unnecessary for Congress to act at all," Circuit Court Judge Sidney Thomas wrote for the unanimous three-judge panel. "The environmental challenges would have been resolved in due course. However, proceeding along the usual course of resolving environmental disputes would be inconsistent with the Bureau of Reclamation proceeding ‘without delay' ‘upon the enactment of this Act.'" The lining project involves replacing 23 miles of earthen canal with a concrete-lined channel. Lining that portion of the 82-mile-long canal would prevent about 67,000 acre-feet of water (enough to serve about 140,000 housing units) from seeping away into the ground. That amount of water would then be transferred from the Imperial Irrigation District to San Diego County, which is funding the project. The $300 million lining project and the water transfer are part of a larger 2003 Colorado River agreement involving numerous states, water purveyors and the federal government. The litigation decided by the Ninth Circuit was filed by a Mexican community group, two environmental organizations and the City of Calexico against the United States. Numerous water agencies intervened as defendants. The Mexican group, the environmental groups and Calexico argued that the project's environmental impact statement was inadequate under NEPA. The environmental groups also contended that other environmental laws were being violated. All of the plaintiffs complained that the lining project would dry up groundwater sources that serve farms and wetlands south of the border. The government argued that the 2006 budget act made the environmental claims moot, and that the court had no jurisdiction over the other claims. The Ninth Circuit agreed. If the court upheld the environmental claims, it would delay commencement of the lining project — in violation of the 2006 budget act, the court ruled. The plaintiffs argued that the act itself is unconstitutional because it requires action by the state, dictates the outcome of a pending judicial case and denies Latinos fundamental rights. The court, however, quickly dismissed those arguments. The court said that due process and takings claims filed by the Mexican group should be directed to the Court of Federal Claims. Other arguments seeking to block the project are barred by the federal government's sovereign immunity, the Ninth Circuit concluded. In state court, Imperial County attempted to argue that the annual transfer of 200,000 acre-feet of water to San Diego County Water Authority and 100,000 acre-feet to Metropolitan Water District of Southern California and Coachella Valley Water District would have impacts not adequately addressed in an environmental impact report. The county contends the transfers would harm the local economy and environment. Sacramento County Superior Court Judge Roland Candee threw out the suit because the county initially failed to name the Met and the Coachella district. The original lawsuit named only the State Water Resources Control Board, the Imperial Irrigation District and the San Diego agency. On appeal, the county made numerous arguments as to why the lawsuit should go forward and why the Met and the Coachella district were not named in the suit until after the California Environmental Quality Act statute of limitations had passed. The Third District, however, upheld the lower court. The court determined that the Met and the Coachella district have "differing and possibly conflicting interests" from the other parties in the lawsuit and, therefore, the Met's and Coachella's interests may not be adequately represented. In addition, Imperial County may press its claims in other state litigation over the water transfer, ruled the court, which rejected the county's reasons for failing to name the entities in the first place. Additional litigation is pending in Sacramento County Superior Court and in federal court. Federal Case: Consejo de Desarrollo Economico de Mexicali, A.C. v. United States , No. 06-16345, 07 C.D.O.S. 3658. Filed April 7, 2007. Some of the Lawyers: For Consejo de Desarrollo: Gaylord Smith, Lewis, Brisbord, Bisgaard & Smith, (619) 233-1006. For Desert Citizens Against Pollution: Gideon Kracov, (213) 629-2071. For the San Diego County Water Authority: Daniel Hentschke, (858) 522-6791. State Case: County of Imperial v. Superior Court , No. C048984, 07 C.D.O.S. 6883, 2007 DJDAR 8843. Filed June 14, 2007. Some of the Lawyers: For the county: Antonio Rossmann, Rossmann & Moore, (415) 861-1401. For the state Water Resources Control Board: Matthew Goldman, attorney general's office, (916) 324-4223. For Imperial Irrigation District: David Osias, Allen, Matkins, Leck, Gamble & Mallory, (619) 233-1155.

The saga of plan check and building inspection fees in Orange County continues, as an appellate court has ruled that the county must reduce fees by $4.5 million and pay nearly $1.4 million in attorney fees and court costs. From 1992 to 1999, the county accumulated $18.5 million in excess plan check and building inspection fee revenue. To retire the excess, the county reduced fees and provided refunds to builders who had not received final inspections. It also dedicated some of the excess revenue to fee-related improvements and services. However, a trial court ruled — and the Fourth District Court of Appeal agreed — that $4.5 million of expenditures were not "reasonable and necessary." The court ordered the county to reduce fees by $4.5 million until the excess is burned off. The fee controversy dates back nearly a decade, when builders complained that Orange County plan check and building inspection fees did not correlate to the level of service. A report prepared for the county by consultant DMG Maximus in 1999 identified the $18.5 million surplus in a plan check and building inspection account known as Fund 113. Over the next three years, the county eliminated the entire surplus and in late 2002 laid off dozens of planners and building inspectors because of what had become a $500,000-a-month deficit. The mess cost both the county executive officer and the community development director their jobs (see CP&DR In Brief , March 2003, February 2003, January 2003). Developer Barratt American, which has challenged similar fees in numerous jurisdictions, filed a lawsuit in September 1999. That litigation went forward in three different phases. The Orange County Superior Court appointed a special master to identify revenue and costs, and the court later appointed an expert under a provision of the evidence code to do more investigation. Ultimately, in January 2005, the trial court found that the county had properly spent $14 million of the Fund 113 surplus by buying a new computer system, increasing staff levels, reducing fees and providing refunds. However, the court determined that the county could not show how $4.5 million in various overhead and service-related charges were reasonably necessary. The court ordered a future fee reduction in that amount and awarded Barratt American attorney Walter McNeill (who has filed many similar lawsuits on the developer's behalf) fees enhanced by 250% because of the unique issues and McNeill's capability. Both sides appealed. Barratt American argued that the Mitigation Fee Act (Government Code § 66000 et seq.) prohibited the county from spending any of the surplus fee revenue and the county should instead lower fees by the amount of the excess. The county argued that the trial court misconstrued what expenses were reasonably and necessarily related to providing services, and that the award of fees was erroneous. Neither side got anywhere with the Fourth District. To Barratt American's contention, the court said: "Using surplus fee revenue to cover the reasonable and necessary costs of the services rather than merely lowering the fees until the surplus is dissipated has the effect of ‘reducing' the future fees. This construction comports with common sense by allowing the county flexibility in managing Fund 113 as long as those costs are reasonable and necessary." To the county's argument, the court said: "There is ample evidence to support the trial court's conclusion that the county did not carry its burden to show $4.5 million of surplus expenditures were applied to reasonable and necessary costs of the fee-related services. Both the special master and Holder reported that the county failed to explain the startling increase in overhead — ‘a 206% increase in three years.'" The Fourth District also found the fee award appropriate under the private attorney general statute (Code of Civil Procedure § 1021.5) because, "Ensuring that the county fulfill its statutory duty to use the fee revenue surplus vindicates an important public right." The county has asked the state Supreme Court to review the case. Less than two years ago, the state high court in Barratt American, Inc. v. City of Rancho Cucamonga , (2005) 37 Cal. 685, rejected most – but not all – arguments the developer advanced in an unrelated but somewhat similar lawsuit (see CP&DR Legal Digest , January 2006). The Case: County of Orange v. Barratt American, Inc ., No. G035627, 07 C.D.O.S. 4781, 2007 DJDAR 6090. Filed April 30, 2007. The Lawyers: For the county: Jeffrey Dunn, Best, Best & Krieger, (949) 263-2600. For Barratt American: Walter McNeill, (530) 222-8992.

The owner of two parcels that the City of Berkeley wants to merge may not avoid the merger with a paper transfer of title to his wife, the First District Court of Appeal has ruled. However, the court stopped short of canceling the grant deed, ruling only that the city may be entitled to an injunction prohibiting further transfer of the property title. The Subdivision Map Act permits cities and counties to force the merger of contiguous parcels under common ownership if one of the parcels is substandard or if its development would create a hazard. In 2004, Berkeley began the process of merging undeveloped, substandard lots in the Panoramic Hill area because the exceptionally steep area lacks good vehicle access, has inadequate sewage capacity, and is particularly susceptible to fire and earthquake damage. On September 28 and again on September 30, 2004, the city notified Maarten Kalway that it was in the process of merging his two lots, one on Mosswood Road and one on Arden Road. Both parcels are on dead-end streets lacking adequate room for fire trucks to turn around, and the 5,000-square-foot, undeveloped Mosswood parcel is far smaller than the 9,000-square-foot minimum required by zoning. Kalway, who had inherited the real estate, told the city that he had deeded the Mosswood parcel to his wife, Mary Kalway, on September 27. The city Planning Commission concluded the transfer was completed solely to the Subdivision Map Act's purpose, so the commission went ahead with the two-lot merger. The Kalways then sued the city. The Alameda County Superior Court ruled for the city and canceled the grant deed. The Kalways appealed, and the First District issued the slightly confusing decision that the city can force the lot merger but cannot cancel the grant deed. The Kalways admitted that they undertook the title transfer to avoid the forced lot merger. Essentially, they argued that because Maarten Kalway held title to one parcel and Mary Kalway held title to the other lot on the date the city notified them of the merger process, the city could not force the merger. However, the First District determined that the map act allows "local agencies to look past the paper title in determining whether properties are under common ownership for purposes of the merger statues." The map act balances the public's interest in orderly community development with private property rights, the court noted. "To allow owners such as the Kalways to avoid merger, and the salutary effects of the act, by means of a paper transfer of ownership, is inconsistent with the purpose of the act and the balance struck by its provisions," Justice William Stein wrote for the court. "The Kalways' interpretation, if adopted also would discourage open discussion and planning by local agencies, as it would create a loophole for any property owner receiving advance warning of a potential merger." "In sum, where two or more properties have the same owner in substance, even if not in form, they may be merged if the act's substantive conditions for merger exist and its procedural requirements are met," the court ruled. Nevertheless, the court ruled that neither it nor the city could cancel the grant deed. The court did determine that Mary Kalway "has no right to further transfer title to the illegally created Mosswood Road parcel except back to Mr. Kalway, and the city may be entitled to a prohibitory injunction against either or both of the Kalways to prevent the further conveyance of the parcel." But the court declined to issue such an injunction. The Case: Kalway v. City of Berkeley , No. A112569, 07 C.D.O.S. 6290, 2007 DJDAR 7895. Filed May 31, 2007. The Lawyers: For Kalway: Jonathan Quint, (510) 595-9130. For the city: Zach Cowan, city attorney's office, (510) 981-6950.

Two cities known for providing a large chunk of the Coachella Valley's affordable housing may soon see some more upscale and very different development. Early this year, the City of Indio approved a master plan for a 48-acre mixed-use development that is proposed to feature nine 10-story condominium towers and more than 500,000 square feet of commercial space. Meanwhile, the nearby City of Coachella is starting work on a specific plan for a 4,000-acre "entertainment commercial district" that the city envisions as the home for golf course resorts, a theme park, an amphitheater, an equestrian center, a soccer stadium and extensive residential and retail development. For many years, the two cities at the east end of the Coachella Valley were poor sisters to their more upscale neighbors, such as La Quinta, Indian Wells and Rancho Mirage. Indio and Coachella provided housing for people who work on the valley's farms and in the hospitality industry. The cities still have some of the valley's most inexpensive housing. But as Indio and Coachella grow rapidly, their demographics are changing. Both cities are seeing more middle-class workers and retirees, and Indio in particular is experiencing a growth in tourism. Both Indio and Coachella qualify as more growth-friendly than most jurisdictions in the sun-drenched valley. The population of both cities has more than tripled during the last 25 years — to 77,000 in Indio and to 38,000 in Coachella. "Projected buildout," said Indio Development Manager Mariano Aguirre, "is maybe as high as 150,000 people. We are estimating that we could reach that within 10 years." Indio has a number of fairly routine housing and shopping center development projects moving forward, including the third phase of the Del Webb/Pulte Homes Shadow Hills project, which will add 950 units to the existing 2,200-unit project for the 55-and-older crowd. Attention, however, is focused on Polo Square, which would be unlike anything in the Coachella Valley or anywhere else in Riverside County. Located along Highway 111 between Jefferson and Monroe streets, Polo Square is proposed to have 512 condominium units in nine, 140-foot-tall towers; a 10-story, 250-room hotel; a 120-room extended-stay hotel; 550,000 square feet of retail and restaurant space, some of it with lofts on upper floors; and roughly 80 single-family houses. The city approved a master plan, general plan amendment, rezoning and environmental impact report in January. Developer William Swank Sr. said his team is working on tentative maps and design details to submit to the city in hopes of breaking ground during the summer of 2008. Swank said he wants his project to be very different from run-of-the-mill, auto-dependent development that he says cities encourage with their strict zoning and design restrictions. "You're either going to go up, or you're going to go out," Swank said. "I hope that others will follow. This project — not just because of me — will change the valley in a very positive way." "If we're going to have any open space at all, we're going to have to go vertical," Swank continued. "The reception we've been getting has been great. We've got enough people to fill up our project." For a project of its magnitude, Polo Square generated very little opposition. Only two residents complained during the public hearing at which the City Council approved the project, and no one challenged the EIR in court. Swank said extensive community outreach and thoughtful design won over the neighbors. The towers will be thin structures, so they won't block views of the mountains. Plus, about half of the site will consist of patios, landscaping and open space. In July, Swank, who built projects in Asia and the Middle East for 20 years, announced that he had lined up $60 million in financing from a consortium of Korean banks, enough to press ahead with what could eventually be a $600 million development. Polo Square is a critical project for Indio, Aguirre said. "It's one of the biggest mixed-use projects anywhere," he said. Swank spoke highly of Indio officials, who were able to process his master plan and related planning documents in only two years. "The city has bought into our project," said Swank, who refers to the project as a city within a city. "We started off looking for a site for two hotels, and it grew from there." Polo Square appears to be the real deal. In Coachella, the city's entertainment commercial district remains more the stuff of big dreams. When it updated its general plan in 1998, the city established the district on 4,000 acres of cropland, open space and Indian lands along Interstate 10 and Highway 86. The city has since adopted a vision plan for the district that speaks of shopping centers, golf courses, equestrian centers and a variety of housing. However, the only significant development within the district is two tribal casinos and two massive truck stops. That could be changing soon, said Carmen Manriquez, the city's community development director. The city recently hired the Planning Center to help with a specific plan process, during which planners intend to revisit the existing land use designations. A specific plan will provide necessary guarantees for both developers and the city, Manriquez said. There is a possibility of increasing residential densities because of demand for such development. "There are projects out there that would like to move forward," he said. The city is also embarking on a general plan update, and it recently received one of the Southern California Association of Government's "two percent" grants to do some intensive town planning. Manriquez said the three processes — specific plan, general plan update and two-percent plan — could eventually merge together. One issue facing city officials is a lack of public interest in long-term planning, said Manriquez, who added that the city is working to generate interest and keep people engaged. Contacts: Carmen Manriquez, Coachella Community Development Department, (760) 398-3102. Mariano Aguirre, Indio Community Development Department, (760) 391-4120. William Swank, Polo Square Partners LLC, (760) 777-1557. Coachella Entertainment Commercial District Vision Update: http://www.coachella.org/Vision%20Update.htm Polo Square website: http://www.polosquare.com/

I recently spent the better part of three days in the eastern Nevada town of Ely. For those of you not current on your Nevada geography, Ely is the largest town on a 400-mile stretch of Highway 50 through Nevada and Utah known as the "Loneliest Highway in America." In other words, Ely is a small town smack in the middle of nowhere. The nearest town is more than 70 miles away. Ely clearly is not thriving. Nor is it dying. It appears to be muddling along thanks mostly to resource extraction industries and outdoor tourism. What struck me about Ely is the local concept of land – all real estate, for that matter — as a disposable commodity. The streets of Ely are lined with abandoned houses, schools, gas stations, restaurants, storefronts, churches and motels. Some appear to have been boarded up since the Johnson administration. "Who owns this stuff?" I thought as I walked through town. Yes, a number of older structures are still in use, including a middle school right downtown and some historic hotel/casinos where smoking is apparently mandatory. But these buildings mingle among those that are abandoned. On the edge of town, naturally, are newer gas stations, motels and stores. Roughly two miles north of town is a fairly new manufactured home subdivision surrounded by a whole lot of sand. Ely's supply of land would appear to be unlimited, and, of course, Nevada is famous for its minimalist approach to regulation. Which means that there is very little incentive for anyone to try to make use of all those abandoned buildings, even if Ely's economy were to somehow gain strength. So, I guess, those vacant buildings are going to sit there and rot for years and years to come. It's a depressing thought, especially when you consider the guy who owns a home or business next door. In California, we have our share of neglected neighborhoods, downtowns and industrial districts. But, for the most part, real estate is not considered a disposable commodity. At some point, somebody or some entity is going to reinvest. Walking away forever is not an option. I find that thought encouraging. - Paul Shigley

The Association of Bay Area Governments (ABAG) executive board has approved the draft regional housing need allocation (RHNA) for cities and counties in the nine-county region. The RHNA is based on new methodology that directs more growth to existing urban areas and locations with transit and jobs, and less growth to the suburban fringes and unincorporated areas. The methodology also attempts to distribute low- and moderate-income units more broadly by taking into account existing low/mod housing stock within a jurisdiction (see CP&DR , February 2007). In April, the state Department of Housing and Community Development told ABAG to plan for between 214,500 and 227,500 new housing units for the period from 2007 to 2014. Cities and counties now have 60 days to submit appeals of the fair-share numbers allocated by ABAG. Officials at ABAG expect to make a final decision on the allocations in April 2008. Cities and counties use the figures to update their housing elements. In the last round of planning, HCD assigned the ABAG region 230,743 units for the 1999 to 2006 period. ABAG recently reported that builders took out permits for 212,000 units during that timeframe. However, builders produced only 43% of the RHNA's very-low income units, 79% of the low-income units and 37% of the moderate-income units. The only excess was in above-moderate-income units. Meanwhile, San Francisco is deciding whether to conduct an environmental impact report for its previous housing element update. In an unpublished decision issued in late June, the First District Court of Appeal threw out the city's 2004 housing element update for lack of environmental review. The city argued among other things that no EIR was necessary because the 2004 update was not substantially different from the previous housing element, which was adopted in 1990. A collection of neighborhood groups concerned about overcrowding, traffic and the impact on business disagreed and convinced the appellate court to overturn a trial court ruling in favor of the city. "Taken together, the changes to the housing element …reflect a shift away from preserving existing housing density and a movement toward allowing denser housing development, and decreased off-street parking, which, in turn could lead to increased traffic congestion, air pollution and noise, as well as a change in the aesthetic quality of city neighborhoods," the court ruled in San Franciscans for Livable Neighborhoods v. City and County of San Francisco , No. A112987. City officials said they may simply set aside the 2004 plan and focus on a fresh update. The draft RHNA assigns San Francisco 31,000 housing units, about 50% more than the city's share for the 1999-2006 period. San Diego Mayor Jerry Sanders' veto of an ordinance that would effectively ban big-box stores that sell groceries will stand. In early July, the San Diego City Council voted 5-3 for the limitation, which was clearly aimed at Wal-Mart supercenters. The measure would have prohibited new stores of more than 90,000 square feet from devoting 10% of floor space to nontaxable goods. Sanders promptly vetoed the measure. The council could have overridden the veto with a majority vote. However, Councilwoman Donna Frye changed her vote. Instead, Frye said she supports requiring an economic impact report on such new stores, similar to what the City of Los Angeles requires. Wal-Mart currently has four stores in San Diego but no supercenters. A disputed Wal-Mart supercenter in the City of American Canyon will apparently open this fall. In late 2006, an appellate court ruled that the city's mitigated negative declaration for the project was inadequate (see CP&DR Legal Digest , January 2007). After the city lost at the trial court level, construction halted and the city began work on an environmental impact report. That EIR recently passed muster with Napa County Superior Court Judge Raymond Guadagni, whose decision was not appealed by supercenter opponents. Placer County supervisors have approved a 14,000-unit housing development over the objections of regional planners who contend the 5,230-acre project is not dense enough and environmentalists who say the project does not set aside enough open space. The Placer Vineyards project would fill a strip of unincorporated territory between Roseville and Sacramento County. Leaders of the Sacramento Area Council of Governments said the plan conflicts with a regional blueprint adopted in 2004, and they advocated for 50% more housing units. Environmentalists decried the plan's dedication of only 700 acres of open space on site plus another 2,900-acres off-site. The opponents said the project would destroy vernal pools and habitat for the endangered Swainson's hawk. The U.S. Army Corps of Engineers has also questioned the proposed destruction of wetlands. Litigation over the project, which has been in the planning stages since the mid-1990s, is likely. In another setback for development of the gigantic Sunrise Douglas community plan in Rancho Cordova, Sacramento County Superior Court Judge Patrick Marlette threw out the city's approval of a 2,700-unit "town center" in the middle of the community plan area. Marlette ruled that the city improperly deferred mitigation of impacts to approximately 200 acres of vernal pools on the 530-acre site. Early this year, the state Supreme Court rejected an environmental impact report for the community plan because it did not adequately describe a long-term water source (see CP&DR Legal Digest , March 2007). The town center project, known as "The Preserve," would apparently preserve only about half of the existing vernal pools. State and federal agencies, in addition to the California Native Plant Society, have protested the wetlands destruction and uncertain mitigation. They have called for leaving nearly half the site as open space. The Kern County grand jury has recommended a "moratorium on future development within metropolitan Bakersfield" until transportation needs are fully funded. The recommendation arrived only three months after county officials said they could not endorse 13 projects totalling 6,500 units in northwest Bakersfield because of a lack of adequate roads. The City of Bakersfield responded to the county's position in May with a $3.3 billion, 20-year transportation funding plan. However, the grand jury said the majority of the plan is "no more than a ‘wish list' with little potential of actually happening in a timely manner," an assertion that city officials sharply challenged.

A bill tying all local transportation projects to a regional "preferred growth scenario" that reduces automobile travel is quickly becoming the most important land use proposal of recent years in Sacramento. The bill has sparked sharp debate in the Legislature over land use policy, with some Republicans criticizing what they see as an attempt to force local compliance with a top-down planning system. Meanwhile, a bill that had led many lists of land use measures, SB 303 by Sen. Denise Ducheny (D-San Diego), stalled in an Assembly committee and is apparently dead for the year. Among other things, the California Building Industry Association (CBIA)-sponsored bill would have required local governments to zone for 10 years worth of housing growth. Ducheny could revive the bill in 2008, or its provisions could be placed into a different piece of legislation after lawmakers return from their summer recess on August 20. While the developers' housing measure appears to be going under for the third consecutive year, a package of bills that attempts to incorporate flood hazards into land use planning is advancing. Among the bills that remain alive are measures that would require state agencies to take a greater role in flood planning and that would require local governments to comply with state plans. However, it is SB 375 by Sen. Darrell Steinberg (D-Sacramento) that has risen to the top of many agendas. Steinberg contends his legislation is simply the next step in the regional "blueprint" or "visioning" process that all four large councils of government have undertaken during recent years, and is a way of implementing last year's greenhouse gas reduction bill, AB 32. The blueprints adopted by the Southern California Association of Governments (SCAG), the San Diego Association of Governments (SANDAG), the Association of Bay Area Governments (ABAG) and the Sacramento Area Council of Governments (SAGOC) all speak to infill, higher densities, transit-oriented development and minimizing urban expansion into greenfield areas. Steinberg's legislation not only requires transportation that planning agencies to adopt such a preferred growth scenario, but also that the scenario be based on greenhouse gas reductions. The bill would further require that all transportation projects comply with the growth scenario. Steinberg and the bill's defenders have characterized the funding provision as an incentive for cities, counties and regional agencies to implement growth plans that minimize automobile travel. But an Assembly Local Government Committee analysis said, "If this is a proverbial ‘carrot,' it is an extremely hard one." Before the Senate approved SB 375 on a partisan, 21-15 vote, Steinberg and Sen. Tom McClintock (R-Thousand Oaks) engaged in an exchange that still has people buzzing. "I've got news for the authoritarians on the Left," McClintock said. "Most people don't want to live in dense urban cores. Most people want a little elbow room. They want a yard for their children to play in. They want a little grass, a little garden, a little breathing room they can call their own. "And who the hell are you to tell people they can't?" McClintock continued. "Who the hell are you to tell people how and where they're going to live? Who the hell are you to impose your preferences for their lives over their preferences for their lives?" Steinberg responded that cities in the SACOG region voluntarily adopted a regional plan "not as an ideology, but as a necessary step to address traffic congestion and air quality." The SACOG blueprint won support from Sacramento liberals and suburban conservatives, he said. "It's about time we not only start talking about regional planning, but we start acting on it. This bill is a way to get there," Steinberg said. "I proudly stand to urge my colleagues to vote for a more sensible and sane way to grow the state." Environmental and clean air groups as well as SCAG have endorsed SB 375. However, SANDAG has come out in opposition, and SACOG and many cities and counties are skeptical. California State Association of Counties lobbyist DeAnn Baker said CSAC agrees with Steinberg's intent and supports blueprint processes. But, she said, the blueprint processes have been successful because they are locally-driven, not the result of a prescriptive state law. "We're concerned that if you push too hard, which this bill does, you'll lose political support at the local level. We're concerned about this taking us backward, about there being a backlash," Baker said. "I think this is beating up the good actors to get to the bad actors." The bill also contains a number of provisions that exempt certain infill projects from California Environmental Quality Act (CEQA) review. However, according to a bill analysis, the provisions are very tight and few projects may qualify. "The additional pressure on land use decisions created by SB 375 could lead to an avalanche of suits," the analysis said. The builders' SB 303 skated through the Senate on a bipartisan 28-2 vote before it stalled in the same Assembly Local Government Committee that asked hard questions about SB 375. The committee staff prepared a long and extremely critical analysis of SB 303, and Committee Chair Anna Marie Caballero (D-Salinas) made it known she would halt the bill's progress. Opponents said that the bill would place housing above every other concern facing cities and counties. For example, the bill would have narrowed the scope of open space elements so that the documents did not have to consider wildlife habitat, waterways, earthquake fault zones, areas at high risk of flood or fire, military base buffer zones and Native American sacred sites. The intent clearly was to open up more areas for housing development. The CBIA and other backers said legislation is necessary to prevent cities from blocking needed housing development. During the Assembly Local Government Committee hearing, Assemblyman Guy Houston (R-San Ramon) made a motion to approve the bill — a motion that was followed by an awkward silence. Although SB 303's author is a Democrat, no Senate Republican had voted against the bill. Still, freshman Assemblyman Cameron Smyth, the former mayor of Santa Clarita and the only other Republican on the committee, declined to second Houston's motion. The package of flood bills is similar to last year's legislation, which builders and real estate interests defeated during the session's final weeks. The bills address comprehensive state flood planning, more flood accountability in general plans and local government liability for flood control projects. Assemblywoman Lois Wolk (D-Davis), who lashed out at builders after last year's defeat, said she is optimistic this year. "I think we're going to have legislation. The governor is engaged. The building industry is engaged and trying to be constructive," said Wolk, who is carrying three bills this year. "Everyone recognizes that at the general plan level, we ought to have analysis and planning for floods that's at least as good as we do for fire and earthquakes." 2007 Land Use Legislation Update These are the top land use bills for the 2007-2008 legislative session. A bill's status as of the beginning of the Legislature's summer recess is in italics. Measures described as "two-year bills" are likely to be dead for the year. Two-year bills and any other legislation that does not pass before the legislative year ends on September 14 may be revived next year. Economic Development • AB 89 (Garcia). Directs the Business, Transportation and Housing secretary to study financing mechanisms for infrastructure along the border with Mexico. Approved by Assembly. • AB 831 (Parra). Requires a sunset date for all new tax breaks or existing tax breaks that get extended. Approved by Assembly. • AB 1398 (Arambula). Proposes a complete overhaul of the system for awarding hiring tax credits. Among other things, the bill would eliminate the ability to claim multiple tax credits for one job. Two-year bill. • AB 1606 (Arambula). Requires several state agencies to coordinate preparation of a statewide economic development strategic plan, and to develop a system for measuring the performance of all state policies intended to stimulate the economy. Approved by Assembly. • ABs 1719, 1720, 1721 and 1722 (Arambula). A series of bills concerning economic development, trade and investment policies. Only AB 1720 remains alive this year. • SB 103 (Cedillo). Requires local agencies to conduct hearings on the details of proposed economic development subsidies of at least $25,000 and provide reports after approval. Stalled in Assembly. Flood Control • AB 5 (Wolk). Requires the Department of Water Resources (DWR) to prepare a Central Valley Flood Protection Plan, and requires cities and counties to comply with the plan's standards. The bill also increases insurance and notice requirements for development in flood hazard zones. Approved by Assembly. • AB 26 (Nakanishi). Requires the Department of Fish and Game and the Reclamation Board to prepare a natural communities conservation plan (NCCP) for multiple species in the San Joaquin-Sacramento river delta. The bill also directs the agencies to prepare a streambed alteration agreement based on the NCCP. Stalled in Assembly. • AB 70 (Jones). Makes local governments partially liable if a flood control project fails. Approved by Assembly. • AB 156 (Laird). Increases the DWR role in Central Valley flood protection. The bill requires DWR to report on levee conditions, map flood-prone areas, undertake levee maintenance, provide annual warning notices to landowners, and establish mitigation banks. Approved by Assembly. • AB 162 (Wolk). Requires cities and counties to include flood hazard information, policies, and implementation measures in general plans. Approved by Assembly . • AB 1452 (Wolk). Sets priorities — including environmental enhancements — for allocating funds from Proposition 1E, last year's $4.1 billion flood prevention bond. The bill complements AB 5. Approved by Assembly. • SB 5 (Machado). Requires DWR to prepare a Sacramento-San Joaquin River flood management system plan, and mandates that cities and counties amend their general plans to comply with the state plan. Approved by Senate. • SB 6 (Oropeza). Requires local governments to consider in their general plans the potential impacts of global climate change, and prohibits subdivisions in areas that could be flooded by rising sea levels. Two-year bill. • SB 17 (Florez). Renames the Reclamation Board the Central Valley Flood Protection Board and requires the board to review local and regional land use plans for compliance with standards adopted by the board. Approved by Senate . • SB 34 (Torlakson). Authorizes DWR to collect user fees and assessments to fund flood control in the Delta. Approved by Senate. Funds for planning • AB 1253 (Caballero). Establishes criteria for the Resources Agency to distribute $90 million to local and regional governments for long-term planning, and $90 million for "urban greening" projects. Funds come from Proposition 84. Approved by Senate. • SB 732 (Steinberg). Takes a comprehensive approach to funding contained in Propositions 84 and 1C for sustainable communities/urban greening, planning, local parks and housing-related parks. Among other things, the bill requires that local and regional governments receiving long-term planning grants or loans agree to plan consistently with Proposition 84's strong environmental goals, and that cities and counties consent to plan consistently with any regional blueprint. The bill has been amended numerous times and more amendments are likely. Approved by Senate. • SB 669 (Torlakson). Makes the Great California Delta Trail eligible for Proposition 84 planning funds. Stalled in Assembly. Housing • AB 414 (Jones). Limits cities' and counties' use of land zoned for nonresidential uses in meeting regional housing needs. Approved by Assembly. • AB 641 (Torrico). Requires that local governments defer all fees on projects with at least 49% affordable units until the certificate of occupancy stage. Approved by Assembly. • AB 1096 (DeVore). Requires the Governor's Office of Planning and Research to report on the California Environmental Quality Act's impact on affordable housing development. Two-year bill. • AB 763 (Saldaña). Increases the required notice given to tenants of apartments being converted to condominiums. Approved by Assembly. • AB 1053 (Nuñez). Allocates $450 million from the Proposition 1C housing bond for infrastructure related to infill housing. Approved by Assembly. • AB 1254 (Caballero). Reduces the shift of property tax revenue from cities and counties to school districts when the city or county approves an affordable housing project. Two-year bill. • AB 1256 (Caballero). Exempts local governments from the state density bonus law if the local government has an inclusionary zoning ordinance that mandates a portion of new units be available to low- or moderate-income residents. Two-year bill. • AB 1449 (Saldaña). Tightens eligibility for density bonuses and waivers of local regulations. Two-year bill. • AB 1497 (Niello). Exempts land that is covered by Williamson Act contracts from the inventory of land suitable for meeting regional housing needs. Two-year bill. • AB 1542 (Evans). Imposes new requirements for the conversion of mobile home parks to resident-owner subdivisions. Approved by Assembly. • SB 2 (Cedillo). Requires cities and counties to identify and zone sites for development of emergency shelters and transitional housing without conditional use permits. Approved by Senate. • SB 12 (Lowenthal). Revises the Southern California Association of Governments' regional housing needs assessment process to align with the regional transportation plan. Signed by governor. • SB 46 (Perata). Establishes how the Department of Housing and Community Development may spend the $850 million in Proposition 1C's regional planning, housing and infill incentive account. Approved by Senate. • SB 303 (Ducheny). Requires cities and counties to identify land for 10 years worth of housing demand, update housing elements every five years, and update all other general plan elements every 10 years. The bill also narrows the definition of land to be considered in an open space element. Two-year bill. • SB 900 (Corbett). Increases the ability of local governments to block the conversion of mobile home parks to resident-owned condominiums, which would not be subject to rent control. Two-year bill. Local government finance • AB 239 (DeSaulnier). Authorizes Contra Costa and San Mateo counties to impose a $25 real estate recording fee to fund affordable housing. Stalled in Senate. • AB 373 (Wolk). Makes numerous technical and substantive changes to the School Facilities Improvement District and the Mello-Roos Community Facilities acts. Among other things, the bill makes road maintenance and lighting, graffiti removal and snow plowing eligible for financing through Mello-Roos taxes. Approved by Assembly. • AB 980 (Calderon). Requires greater disclosure of real property transfer fees that fund various local government programs and projects. Approved by Assembly. • AB 1091 (Bass). Establishes policies for HCD's administration of $300 million in transit-oriented development funding contained in Proposition 1C. Approved by Assembly. • AB 1221(Ma). Permits a city or county to divert tax increment to fund infrastructure for transit villages. Stalled in Senate. • AB 1574 (Houston) and SB 670 (Correa). Restrict the imposition of real property transfer fees. Two-year bills. • SCA 12 (Torlakson). Exempts fees to fund stormwater projects from Proposition 218's voter approval requirement. In Senate. • SB 934 (Lowenthal). Authorizes creation of up to 100 housing and infrastructure zones in which tax-increment financing would pay for a variety of housing and infrastructure projects. Two-year bill. Natural resources • SB 27 (Simitian). Calls for a new study of a potential "peripheral canal" that would channel fresh water around the Delta toward Southern California. Stalled in Assembly . • SB 421 (Ducheny). Authorizes the Department of Parks and Recreation to acquire property under a conservation easement or similar restriction. Approved by Senate . • SB 634 (Wiggins). Prohibits local governments from approving the subdivision of lands covered by a Williamson Act contract unless the government can make certain findings. Stalled in Assembly . Redevelopment • ACA 2 (Walters) and SCA 1 (McClintock). Limit the use of eminent domain. Two-year bills. • ACA 8 (De La Torre). Prohibits the taking of owner-occupied housing for economic development projects. The measure also prohibits the taking of small businesses unless the owner is first given a chance to participate in the proposed development project. In Assembly committee. • AB 887 (De La Torre). Provides additional notice and compensation for owners and tenants of property the government takes via eminent domain. On Senate floor. • AB 987 (Jones). Permits almost any low- or moderate-income person to enforce affordability covenants on housing units subsidized with redevelopment funds. Approved by Assembly. • AB 1553 (DeSaulnier). Allows use of tax increment for loans to firefighters for the purchase or rehabilitation of homes in a project area. Two-year bill . • SB 437 (Negrete McLeod). Requires redevelopment agencies to report their project area's time limits in annual reports and implementation plans. Signed by governor. Other • AB 35 (Ruskin), AB 888 (Lieu), AB 1058 (Laird). Require state agencies to establish sustainability standards for building construction. All three bills have been approved by Assembly. • SB 375 (Steinberg). Requires most transportation funding to be consistent with regional growth "blueprints." Approved by Senate. • AB 411 (Emmerson). Gives cities and counties greater say over the siting of group homes for six or fewer residents. Two-year bill. • AB 665 (DeSaulnier). Requires the Department of Housing and Community Development to produce the Growth Management Information Report every five years. Stalled in Senate. • AB 704 (Eng). Requires local governments to establish a resident advisory commission on the environment to make planning recommendations. Two-year bill. • AB 724 (Benoit), SB 530 (Dutton), SB 992 (Wiggins) and SB 1000 (Harman). Address local government concerns with the siting and licensing of "sober living" homes in residential areas. All four pieces of legislation are two-year bills. • AB 889 (Lieu). Creates a new authority to construct a rail line to the coast of Los Angeles, including a stop at Los Angeles International Airport. Two-year bill . • AB 1066 (Laird). Requires local governments that could be affected by rising sea levels to account for climate change when updating general plans. The bill charges OPR with preparing guidelines for how local governments should consider the issues. Approved by Assembly. • SB 10 (Kehoe). Changes the governance and structure of the San Diego County Regional Airport Authority and assigns the entity various duties and deadlines related to siting a new airport. Stalled in Assembly. • SB 162 (Negrete McLeod). Requires local agency formation commissions to consider environmental justice when considering boundary changes. Approved by Senate.

What's the economic engine of the 21st Century? It's not exploitation of natural resources – which, according to one recent report, accounts for only 5% of our nation's wealth. It's not factory-style production – that's only another 18%. It's "intangible capital" – our education, our system of laws that creates a predictable society, ingenuity, and the ability to convert ingenuity into tangible products. These represent more than three-quarters of our nation's wealth. The United States is being broken up economically by "The Big Sort" – a sorting of states and metropolitan areas into economic winners and losers. The losers are the ones that exploit natural resources or manufacture products. The winners are the ones with lots of intangible capital. But are farming, mining, and manufacturing states and towns destined for the dustbin? Not necessarily – if they can find a way to capture wealth from these activities when and where it's created and put it to long-term use locally. Part of the reason that California is a wealthy state is that we've been doing this consistently here for a century and a half. Wealth from the Gold Rush was plowed into the transcontinental railroad, which created more wealth, which endowed Stanford University, which in turn spawned Silicon Valley, which has generated vast amounts of investment capital and philanthropic wealth that is stimulating the next generation of economic growth. The flip side of this approach is what might be called the "colonial" strategy. Investors in the centers of finance put money into natural resources and production in other parts of the world, but then remove the wealth and take it back to the financial center. This is one of the reasons that London is rich and Africa is poor. In America's Big Sort today, the winners are London – rich with capital -- and the losers are Africa – bereft not only of jobs but, more important, without wealth either. For the losers in the Big Sort, the solution – if there is one – lies in strengthening the place-based institutions such as universities, hospitals, and other institutions that can't easily leave. These are the institutions that will create the intangible capital of the future through research breakthroughs, and they can also serve as the recipients of philanthropic wealth. In this way, even the Big Sort losers can focus on creating enough wealth so that they are Silicon Valley in a small way, rather than Africa in a big way. -- William Fulton To read a longer article in Governing magazine by William Fulton on this topic, click here .

On July 24, the last 7-mile stretch of the 210 Freeway opened from Rialto to San Bernardino. In a way, it was the end of an era. The 210 has been on the books for 60 years, connecting Pasadena with San Bernardino at the base of the Angeles National Forest foothills. The 210 has been opening section by section for many years. It greatly increases highway capacity in a fast-growing part of Southern California. And it's a freeway. That's right: Driving on the 210 is free. No tolls, no special lanes built by private contractors, no "Lexus Lanes". The 210 was paid for with tax revenue, built by private contractors working directly for the government, and is available to drivers on a first-come, first-served basis. Transportation experts talk a lot about different ways to deal with traffic congestion in California these days, but usually new freeways built with tax revenue are last on the list. We might see a few more of these – especially in the Central Valley – but in Southern California, at least, the 210 might be the last. Freeways in California are free mostly because of the state gas tax, which was passed 60 years ago. But the gas tax isn't indexed to inflation or the price of gas, and fuel efficiency is on the rise once again. Combined with the rising cost of construction materials and environmental mitigation, California is in a bind. State bond funds like Proposition 1B and county sales taxes help fill the gap, but they won't be enough. So now, California is experimenting – with toll roads built by government agencies and with toll roads built by private companies that receive long-term franchises from the government. Most radically, somebody in California will probably soon begin experimenting with "Lexus Lanes" that allow solo drivers priority access to the freeway if they pay. But will any of this make a real dent in traffic congestion? Or, to mix metaphors, are we just nibbling around the edges? When experts talk about innovation in highway financing, tolls, and pricing, they're really talking about three different things: using toll revenue to pay for new construction; using privatization to reduce the cost of construction; and using pricing as a market mechanism so that capacity is used more efficiently. The first two are nothing new. The third is a radical idea. Toll roads built and maintained by public agencies are pretty common elsewhere in the country and the world. It's impossible to drive the interstate system in the Northeast, the Mid-Atlantic states, or the Midwest without hitting a toll booth every now and then¸ especially in big cities. We've already seen more public toll roads built in California. The three toll roads in southern Orange County are the most prominent example. They're not drawing as much traffic as predicted so far, but surely more will be built. The idea of having private companies own and operate toll roads is an old idea revived by privatization advocates arguing that the private sector will be more motivated to construct needed roads and more able to control costs. Prior to the rise of "big government" during the 20th Century, it was not uncommon for both state and federal governments to use private entities – franchise-holders or concessionaires – to construct, own, and operate transportation corridors. Even the transcontinental railroad of the 19th Century – a story known in detail by every California fourth-grader -- was a good example of this "public-private partnership" approach. The private railroads received both money and land in exchange for building the railroads, and after construction was complete they had a monopoly. But public accountability was always a problem – that's why all astute California fourth-graders can explain Union Pacific's Credit Mobiliere scandal – and good-government reformers of the early 20th Century pushed the idea that the public sector, not the private sector, should do both the financing and the building. Now we're swinging back in the other direction. But public accountability and risk can still be problems. Private investors on the 91 Freeway toll lanes between Orange and Riverside counites had to be bailed out when traffic and revenue did not meet expected levels – partly because of competition from one of the public toll roads (see CP&DR Public Development , February 2003 , February 2000 ). The 91 toll lanes are now run by a public agency and charge the highest tolls in California – close to $10. Which leaves congestion pricing. Except on the 91 – where the toll structure has certain congestion pricing aspects – congestion pricing is an idea that has been kicked around a lot but not implemented many places. Promoted largely by the market-oriented Reason Public Policy Institute in Los Angeles, congestion pricing allows drivers premium spots on the existing freeway – in the carpool lane — if drivers are willing to pay for access. This idea is often derided as Lexus Lanes providing rich people with a way to avoid congestion while the poor are stuck in traffic. But Reason's idea is backed up with some polling that suggests most people would pay to use the carpool lanes only when they are in a hurry, not all the time. On the I-15 in San Diego, the public appears to have accepted a variable pricing experiment in place since the late 1990s. Underlying the congestion pricing concept, however, is a radical shift in the way we think about highways. In the freeway era, space on the highway was viewed as an unlimited public resource available to anyone. Whenever we ran out, we just created more. Congestion pricing acknowledges there is a limited amount of freeway space and argues that space should be allocated, like most everything else in our society, through price. In a sense, congestion pricing – promoted largely by Reason's conservative economist Bob Poole – is not much different than the parking views of UCLA's more liberal economist Don Shoup, who argues that parking should be priced at market rates as well (see CP&DR Q&A , May 2005 ). In some ways, the idea of selling space on the freeway is not so different than the current situation. Most urban freeways in California have already diminished the first-come, first-served idea. Instead, they allocate some freeway space to those who engage in what might be called a social good – carpooling, riding a bus or a vanpool, or, more recently, driving a hybrid. By simply adding people willing to pay money to those engaging in a social good, congestion pricing can be viewed as an adaptation of an existing idea. Of course, there's only so much space in the carpool lane – especially with those fussy Prius drivers slowing things down – so choices will have to be made there as well. In fact, Reason's plan in Los Angeles would do just this. It would increase the carpool minimum from two to three people. Essentially, the Reason proposal would take the freeway space currently allocated to two-person carpools and reallocate it to solo drivers willing to pay. Of course, nobody is talking about reallocating first-come, first-served lanes to special drivers – either drivers who pay or drivers who pursue a social good. The last person to try that was Jerry Brown 30 years ago, and he's still regularly skewered around the state for trying it. So what we have is, pardon the expression, a hybrid system. Most people ride their brakes while in the regular lanes, while a few people who pay money or do special things get to slip through in the few express lanes we've created. Which is why I say that all this is nibbling around the edges. Until we're willing to overhaul the entire freeway system to eliminate the first-come, first-served idea, other approaches – whether market-oriented or based on social good – won't make much difference. For now, I'll keep riding Metrolink.

Planning Manager - City of Ventura ($80,082 - $107,312 per yr + excellent benefits). Beautiful seaside community has an exciting opportunity for a municipal planning professional committed to the principles of urbanism, smart growth, and traditional neighborhood design to lead a dedicated and talented team in the Current Planning Section of the Community Development Department. Incumbent will play a pivotal role in reshaping new development to make Ventura a national model of smart growth by managing the Current Planning Section work program which includes planning, zoning, development, environmental review and design review activities of the City. Requires B.S. in related area and 5 years of professional planning experience and/or related program management experience including two years of supervisory responsibility for a major planning function. A Master's degree is preferred. Apply immediately for this exciting opportunity at www.cityofventura.jobs . EOE.