A City of Hanford zoning ordinance that permitted furniture sales only in large department stores has been thrown out as unconstitutional by the Fifth District Court of Appeal. The ordinance, which was intended to keep furniture stores downtown, prohibited all but the largest stores in an outlying planned commercial (PC) zoning district from selling furniture. But the ordinance contained an exception allowing stores of at least 50,000 square feet to devote up to 2,500 square feet to furniture displays. The exception created two classes of retailers, and “the disparate treatment of these two retailers does not bear a rational relationship to the goal of preserving downtown Hanford,” the court ruled. The controversy started in 2002, when Adrian and Tracy Hernandez sought a certificate of occupancy for Country Hutch Home Furnishings and Mattress Gallery, a 4,000-square-foot mattress store that would also carry bedroom furniture and accessories. The store was to be located in the PC zone. A city official told the business owners they could not sell furniture at this location, and in early 2003 the city approved a certificate of occupancy for Country Hutch that identified the merchandize the store could sell. Furniture was not on the list. The Hernandezes opened the store and started selling furniture anyway. The city cited them for violating the zoning ordinance. The store owners responded with a request that they be allowed to sell the same type of furniture already available at Wal-Mart, Gottschalks and The Home Depot in the same zoning district. The city conducted a series of study sessions before the City Council in July 2003 adopted a new ordinance prohibiting the sale of furniture in the PC zone except by department stores of more than 50,000 square feet. The city reasoned that the ordinance would protect the vitality of downtown — where the city wants to see furniture stores — while still keeping the PC zone available for department stores. The Hernandezes sued, arguing that the ordinance violated the constitution’s equal protection clause. Kings County Superior Court Judge Peter Schultz found that there was a rational basis for treating the two classes of stores differently, and he upheld the ordinance. The store owners appealed, and a unanimous three-judge panel of the Fifth District overturned the lower court in a very straightforward decision. The appellate court found that the prohibition on furniture sales in the PC zone “appears to reasonably relate to a legitimate governmental purpose, i.e., keeping large furniture stores downtown in order to preserve the economic viability of that commercial district.” The problem, wrote Justice Herbert Levy, was the exception for large stores. “Country Hutch sells mattresses and home furnishings, both permitted in the PC zone. Country Hutch also wanted to include a limited furniture department. The department stores are in the same position. They want to devote a portion of their floor space to furniture. Under these circumstances, the difference in total floor space is largely irrelevant. Thus, these retailers are in similar situations. Accordingly, in order for the ordinance to comply with the equal protection principles, this classification based on size must bear a rational relationship to the legislative goal, i.e., the preservation of downtown Hanford. “Here, with the blanket 2,500-square-foot restriction on furniture in the PC zone, the small retailer poses the same potential threat, if any, to the downtown merchants as the larger store. Thus, limiting the furniture sales exception to stores with more than 50,000 square feet is arbitrary. A rational relationship between the size classification and the goal of protecting downtown simply does not exist.” The court also rejected the city’s argument that the ordinance was legitimate because it made the PC zone attractive to large retailers. Small retailers are not a detriment to the PC zone, the court ruled. The Case: , No. F047536, 06 C.D.O.S. 2643, 2006 DJDAR 3718. Filed March 28, 2006 The Lawyers: For Hernandez: Russell K. Ryan, Motschiedler, Michaelides & Wishon, (559) 439-4000. For the city: Michael J. Noland, Kahn, Soares & Conway, (559) 584-3337.

Urban sprawl has been blamed for everything from vanishing farmland and dwindling wildlife to Baby Boomer obesity. Central Valley air pollution regulators are blaming it now for much of the region’s persistently dismal air quality, and they have embraced a radical fix never before tried: using the threat of smog-mitigation fees to encourage “smart growth” development patterns and greener building design. No other regulatory agency in the nation has made such an explicit link between land-use patterns and polluting emissions from automobile traffic, and then tried to use developer fees as a hammer to reshape community growth. Unsurprisingly, the move by the San Joaquin Valley Air Pollution Control District has drawn loud and angry condemnation from the building industry and affordable-housing advocates, who argue the fees boost the cost of new homes and shut many would-be buyers out of one of the state’s hottest markets. Opponents also believe the program unfairly targets only new construction, when existing residents contribute most of the pollution. Clovis Mayor Nathan Masgig, spokesman for a group opposing the fee, issued a press release calling it “a whopping new tax on Central Valley taxpayers, businesses and our entire regional economy, all with no guarantees of better air quality.” Environmentalist and public-health experts have been equally energetic in their praise for the new rule, which took effect March 1. And it was defended as both a legal and a regulatory necessity by district staff, who pointed out that a recently adopted state law gives them no other option for cleaning some of the dirtiest air in the county. Bakersfield, Tulare, Visalia and Fresno now rank with Riverside, San Bernardino and Houston at the top of the national list for ozone pollution. “With the amount of expected growth in the valley, every emission reduction from this rule is important,” Seyed Sadredin, deputy director of the air district, said in announcing adoption of the regulation. “Although air quality has improved greatly over the years, we still have a serious problem, and innovative programs like this will help us clean the air.” The San Joaquin Valley Air Pollution Control District encompasses eight counties, from San Joaquin in the north to Kern in the south, and is governed by county supervisors and city council members from throughout the region. The district has been criticized for years for failing to address the valley’s persistently poor air quality (see CP&DR Environment Watch, April 2002). The district adopted the new rule after the Legislature in 2003 enacted SB 709 by Sen. Dean Florez (D-Shafter), which requires the San Joaquin district to adopt, by regulation, a schedule of fees to be assessed on area-wide or indirect sources of emissions. The regulation, dubbed the “Indirect Source Review” program, was approved in December. It applies a sliding fee scale to large new developments, which it defines as those that include any of the following: • 50 residential units; • 2,000 square feet of commercial space; • 25,000 square feet of light industrial space; • 100,000 square feet of heavy industrial space; • 20,000 square feet of medical office space; • 39,000 square feet of general office space; • 9,000 square feet of educational space; • 10,000 square feet of government space; • 20,000 square feet of recreational space; or • 9,000 square feet of space not identified above. The fee is based on a complicated series of equations intended to quantify the added pollution produced by construction equipment and vehicle traffic associated with each type of project, and the estimated cost of offsetting those emissions through off-site reductions at other emission sources. The pollutants of primary concern are small particulate matter, such as the fine soot in diesel exhaust, and nitrogen oxide, a common vehicle emission and a precursor of ozone. The valley is in violation of state and federal standards for those pollutants, despite significant reductions from stationary and mobile sources. The main reason for the violations, according to air district staff, is the staggering increase in valley auto traffic. Residents drive 94 million miles a year, and population is booming, but the district cannot directly regulate tailpipe emissions from private cars and trucks. The consequences of poor air quality are serious for children and other people with sensitive health. Research has confirmed a link between airborne particulates and illnesses such as asthma. Ozone can irritate and inflame the respiratory tract, particularly during heavy physical activity, which results in heavy coughing, throat irritation, and breathing difficulties. Fresno County has the highest childhood asthma rate in the state. Most of the controversy over the rule has arisen from the requirement that developers pay for pollution produced by vehicle traffic associated with their projects over a 10-year period. That traffic includes employees driving to and from work sites in office buildings, industrial plants and other developments, as well as people driving to and from their homes in large residential projects. The fees can be steep, and they rise over time. For nitrogen oxide emissions, the impact fee starts at $4,650 a ton this year, rises to $7,100 next year and hits $9,350 in 2008 and beyond. The particulate emission fee starts at $2,907 a ton, and then rises to $5,594 and $9,011. For a typical residential development of 120 single-family homes on 24 acres, the fee would translate to $780 per home this year, climbing to more than $1,700 in 2008. Builders can reduce the fee substantially, however, by incorporating green building technologies into their projects — increased energy efficiency, for example — clustering housing units near transit stops and shopping centers, boosting density and making development more pedestrian-friendly. Depending on how many of those strategies the developer employs, the fee could drop to $557 or $454 per home — not much of an added hit for the buyer of a $250,000 dwelling. The district estimates the fee will raise more than $100 million in the first three years, which the district plans to spend on clean-running buses and street sweepers, and other pollution-reduction measures. Critics of the rule are skeptical that it will enable the district to clean the valley’s air enough to meet state and federal standards. But the region’s regulators are fast running out of sacred cows to exempt from air-pollution controls. In the bovine sense, that’s literally the case: By summer, the valley air district is expected to impose smog restrictions on cows and pigs, too. Contacts: San Joaquin Valley Air Pollution Control District, (559) 230-5800. Indirect Source Review Program: http://www.valleyair.org/ISR/ISR.htm Clovis Mayor Nathan Masgig, (559) 324-2101.

A scandal involving development of a hub for cargo carrier DHL has raised questions about reuse of the March Air Force Base in western Riverside County. Whether the scandal will cost March the DHL operation is unknown, but some people in charge of March redevelopment are questioning the governing system established for base reuse. In February, an investigated attorney hired by the March Joint Powers Authority (JPA) reported that the developer of the DHL hub, March GlobalPort, had provided the JPA and the public with an incorrect flight path for the cargo airplanes. The flight path map presented by March GlobalPort showed the planes taking off over Interstate 215 and Highways 60 and 91. The real flight path, however, takes the planes right over two Riverside neighborhoods. Residents of those neighborhoods had sued to halt the DHL project, but they lost in Superior Court and did not appeal. The flight path revelation came only days after a consultant hired by the JPA reported that March GlobalPort had overestimated landing fee revenue from the DHL operation. The consultant said fees would amount to only $9.5 million over 20 years — not the $26 million the developer had predicted. Opponents of the DHL project, including Riverside County Supervisor and JPA Commission Member Bob Buster, have seized on the new information to question both the JPA’s structure and cargo hub, which began operating last fall. Others are at least questioning the JPA, which is overseen by a commission composed of two elected officials each from the county, the City of Riverside, Moreno Valley and Perris. “There is absolutely no communication,” said Ed Adkison, a Riverside councilman who sits on the JPA commission. “When things go awry, I find out about it by reading the newspaper. How can you have oversight if you don’t know yourself what is going on?” Adkison pointed to a recent citation the JPA received from fire authorities for storing aviation fuel improperly — an embarrassment Adkison learned about in the newspaper. The JPA commission recently hired Tom Evans, a former Riverside interim city manager and former chief of the city’s municipal electric and water utility, to audit JPA operations and make recommendations. Most base reuse efforts have a joint powers authority in charge of redevelopment, and the JPAs frequently sign agreements with master developers. This is true at March. However, unlike other base reuse efforts, in the case of March, the JPA — not the local city or county —has land use police powers. Adkison said the JPA was never intended to be a permanent entity, and now that uses of most of the 4,400-acre base have been planned and approved, it may be time for a change. “At some point in time, the JPA needs to go away,” Adkison said. “The JPA was never supposed to be a municipality. Now, as you’ve got these buildings going up, they need municipal services and infrastructure.” Not all JPA members agree. Richard Stewart, a Moreno Valley councilman and current JPA chairman, has repeatedly said there is no need to break up the JPA now. In recent weeks, Stewart has clashed with county and Riverside representatives regarding the JPA’s future. Last month, the City of Riverside released a map that proposed spheres of influence over the base and adjacent lands. The map gave 4,332 acres to Riverside, 543 acres to Moreno Valley and 44 acres to Perris. The map outraged Moreno Valley and Perris officials. “We are all equal partners in this authority,” Moreno Valley Mayor Bonnie Flickinger told the Riverside Press Enterprise. “What bothers me is that this was unilateral. Perris and Moreno Valley and Riverside County are not suburbs of Riverside, and Riverside is not the center of the universe.” At the heart of the acrimony, though, is the investigative report prepared for the JPA commission by Los Angeles attorney Leonard Gumport. The JPA asked for the investigation after the Press Enterprise reported last September, shortly before DHL flights commenced, that the flight path map presented by Greg Diodati, then the managing partner of the cargo hub developer, was inaccurate. The incorrect map was displayed at two public hearings in September 2004. During the second hearing, the JPA commission voted 7-1 to approve the cargo hub. Nine days after that vote — but before a routine, “second reading” of rezoning for the cargo hub — Diodati submitted a letter to the JPA providing new flight path information. “Diodati’s October 1, 2004, letter was intentionally cryptic and misleading to the public, including the March JPA commissioners,” Gumport reported. “In the letter, Diodati obscured from the public and the commissioners the discrepancies between the flight path depicted in the inaccurate chart and the different flight path used in noise contour maps prepared by March GlobalPort’s noise consultants.” Apparently a draft of the noise consultants’ “single-event noise exposure level study” based on the correct flight path was presented to JPA staff members only hours before the commission voted to approve the project. A final version of the noise study was made public before the October 6, 2004, second reading. Diodati has publicly stated he did nothing wrong and did not intend to deceive anyone. However, he has been removed as the developer’s managing partner. Two months after the JPA approved the cargo hub, DHL selected March over the former Norton Air Force Base in San Bernardino and Ontario International Airport for a new cargo hub that could ultimately employ 250 people. Officials in San Bernardino and Ontario concede they are at least closely monitoring the situation, although DHL has not indicated it intends to relocate. Andy McCue, managing director of the Blakeley Center for Sustainable Suburban Development at UC Riverside, said the recent revelations could hinder continued redevelopment at March, which had been seen as a model for others to replicate. If the individual jurisdictions start “Balkanizing,” redevelopment could truly suffer, he said. “A lot of the momentum they had has been dissipated,” McCue said. “It’s not just the DHL project. All of these other things are starting to come out of the woodwork now. But the fact remains that for all of the cities around here and the county, March remains a very attractive economic development opportunity.” Indeed, a development agreement between the JPA and Lennar for a 1,290-acre business park remains in place. Development for a portion of that project has already begun. Contacts: Ed Adkison, City of Riverside, (951) 826-5991. Andy McCue, Blakeley Center for Sustainable Suburban Development, (951) 827-4103. March Joint Powers Authority: www.marchjpa.com

With the debate over infrastructure crashing to a halt, state lawmakers have turned their attention to housing legislation. In recent weeks, lawmakers have introduced and debated numerous housing bills, several of which chip away at local governments’ regulatory authority. Perhaps the most divisive bill is SB 1177 (Hollingsworth), the latest change to the density bonus law. The bill would prohibit local governments from requiring that developers show a requested waiver of development standards or zoning is economically necessary. Proponents of the bill argue that some cities are requiring developers to submit profit and loss statements and tax returns to prove that a waiver of development standards is economically necessary for a housing project. Local government representatives say that a waiver of community standards should require a showing of economic necessity. The Senate Transportation and Housing Committee approved SB 1177 after a sometimes heated hearing during late March. The hearing, in part, demonstrated confusion over the density bonus law, which lawmakers amended with SB 1818 in 2004, and with SB 435 in 2005 to make the statute more favorable to builders. Under the existing law, developers may build 25% more housing units than a property is zoned for if 10% of the units are affordable to low- or moderate-income residents. Developers also are eligible for one “regulatory incentive,” such as a reduction in site development standards, a modification of zoning requirements, or approval of mixed-use zoning. Developers who build a slightly greater percentage of affordable units are eligible for a density bonus of up to 35% and up to three waivers of local regulations. The existing law also lets developers request additional waivers of regulations. To get the additional waivers, though, developers must show that the waivers are necessary to make the housing units economically feasible. SB 1177 would change the economic necessity standard to one of physical necessity. Sen. Dennis Hollingsworth (R-Murrieta) said during the committee hearing that cities are abusing the economic necessity standard. He said there is “a growing recognition that the density bonus law is not being used as intended.” The California Building Industry Association, the California Association of Realtors (CAR), the California Federation of Labor and affordable housing developers are among more than 100 supporters of the bill. Ron Kingston, a CAR lobbyist, said it was impossible to quantify how an exception to architectural standards or setback requirements would make a project economically feasible. Marc Brown, of the Western Center on Law and Poverty, contended that cities use the economic necessity requirement to harass developers. Planning and local government representatives strongly oppose the bill. “Four years ago, this law worked pretty well,” said Daniel Carrigg, a lobbyist for the League of California Cities, which opposed the 2004 and 2005 amendments. “It’s become a disaster, a mess. This bill simply makes it worse.” Under the current law, if requested waivers are not granted, a developer may sue a local government, said Sande George, lobbyist for the California Chapter of the American Planning Association. Cities and counties end up granting waivers simply to avoid litigation, she contended. Several senators expressed skepticism at local government’s opposition. Sen. Denise Ducheny (D-San Diego) said economic feasibility of a development project is not a city’s concern. Besides, she said, a city could still decline to approve a requested waiver if it makes required findings. The committee approved SB 1177 on a bipartisan 10-2 vote, and the bill’s chances for approval appear good. Although authored by a conservative Republican, SB 1177 has a liberal Democrat, Assemblyman Dave Jones (D-Sacramento), as an Assembly sponsor. Local governments are supporting a competing bill, AB 2484 (Hancock), that would prohibit density bonuses for parcels already zoned for high-density development. Other housing bills under consideration: • AB 1387 (Jones) streamlines environmental review of infill housing projects near transit stops. • AB 2158 (Evans) requires councils of government, when establishing fair-share housing requirements, to consider cities’ and counties’ adopted spheres of influence and local agency formation commission policies. • AB 2331 (Villines) exempts projects funded by local governments, including redevelopment agencies, from prevailing wage labor requirements. • AB 2468 (Salinas) allows local governments to self-certify their housing elements in certain situations. • AB 2511 (Jones) places numerous restrictions on local governments’ ability to regulate and approve housing development. Among other things, the bill would remove cities’ and counties’ ability to attach conditions or require a variance for second units, and limits local governments’ ability to place conditions on certain housing proposals. • AB 2526 (Arambula) requires cities and counties to defer local fees until the issuance of a certificate of occupancy if at least 49% of a project is affordable. • AB 2562 (Saldaña) and SB 1676 (Ducheny) increase notification requirements to residents of rental properties being converted to condominiums. • AB 2922 (Jones) would increase redevelopment agencies’ housing set-aside from 20% to 50%. • AB 3042 (Evans) provides a new way for cities and counties to transfer shares of regional housing needs. • SB 1754 (Lowenthal) establishes a pilot project for formation of housing and infrastructure financing districts. • SB 1798 (Perata) expands a California Environmental Quality Act exemption for infill residential developments to projects of up to 10 acres and 200 units. • SB 1800 (Ducheny) requires cities and counties to designate a 20-year land supply for housing.

A state appeals court has provided water quality regulators with two significant victories, at least one of which could affect land use and development. The Fourth District Court of Appeal upheld the Santa Ana Regional Water Quality Control Board’s stormwater regulation for 18 local governments in San Bernardino County. A different panel of the same court upheld nearly all of a much-discussed “trash TMDL” that charges local governments with keeping all trash out of the Los Angeles River. Cities have fought the regulations since they were initially proposed, arguing that compliance would be overly expensive. The cities have asked the state Supreme Court to review the decision on the Los Angeles River regulation. The San Bernardino County stormwater ruling could have the largest impact for those in the land use planning and development fields. Regional water boards in most of the state’s urban areas have cracked down on storm drain discharges during recent years (see , October 2002, August 2001, March 2000, February 1998). The increased regulation intends to slow and filter runoff, which has forced a change in some planning and development practices. Some cities and counties — especially those located upstream — and development interests have fought the rules. The case at hand concerned a 2002 municipal stormwater permit that the Santa Ana regional board issued for 18 local government entities in San Bernardino County. Several of those entities appealed the permit’s conditions to the State Water Resources Control Board, which summarily dismissed the appeal. The cities of Rancho Cucamonga and Upland then sued the state and regional boards on procedural and substantive grounds. San Bernardino County Superior Court Judge Shahla Sabet ruled against the cities. Rancho Cucamonga alone appealed, and the Fourth District, Division Two, upheld the lower court. The Fourth District had little patience with Rancho Cucamonga’s arguments. First, the court ruled that Judge Sabet correctly dismissed the state board from the case because the state board had declined to become involved in the permit. Then the court turned to the regional board’s actions. The city raised what the court described as “an omnibus objection to the entire administrative record,” especially the inclusion of three studies regarding marine pollution and an economic study. The court ruled, though, that the city had waived its objection because it did not raise concerns about the record during the administrative process. The court then considered five substantive complaints: that the regional board failed to consider the economic impact of the permit conditions; that there was not substantial evidence supporting the board’s decision; that the lack of a “safe harbor” provision in the permit violated the Clean Water Act; that the permit conditions exceeded the “maximum extent practicable” standard for controlling pollution; and that the permit was overly prescriptive. The court discussed each argument only briefly before rejecting each one. The court determined the 2002 permit “was based on a fiscal analysis and a cost/benefit analysis.” As for the alleged lack of sufficient evidence, the court said it was unwilling “to review the many thousands of pages submitted on appeal.” Justice Barton Gaut wrote for the court: “Rancho Cucamonga had the burden of showing the board abused its discretion or its findings were not supported by the facts. To the extent it attempted to do so at the trial court level, it was not successful. … e deem the trial court’s findings sufficient.” The court called the safe harbor argument “much ado about nothing.” Under the safe harbor principle, an agency is considered in compliance with the Clean Water Act if the agency complies with its permit. The court said that the safe harbor protection exists in statute and does not need to be repeated in the permit. Regarding the actual permit conditions, the court found them in compliance with the Clean Water Act and cited its ruling in , (2004) 124 Cal.App.4th 866 (see , January 2005). In that case the court ruled that the act allowed the San Diego regional board to adopt stormwater regulations that surpassed the “maximum extent practicable” standard. “ ike the permit in ,” Gaut wrote, “the 2002 permit contemplates controlling discharge of pollutants to the maximum extent practicable through a ‘cooperative iterative process where the Regional Water Quality Control Board and municipality work together to identify violations of water quality standards.’ The 2002 permit does not exceed the maximum extent practicable standard.” The court also rejected the argument the permit conditions were overly prescriptive. “The development and implementation of programs to control the discharge of pollutants is left largely to the permittees,” the court determined. The Los Angeles River case concerned the infamous “trash TMDL.” Under the Clean Water Act, agencies are supposed to set total maximum daily loads (TMDLs) for impaired water bodies (known as the 303(d) list), such as the Los Angeles River. “‘A TMDL defines the specified amount of a pollutant which can be discharged or loaded into the waters at issue from all combined sources,’” the Fourth District explained, using a definition from , (9th Cir. 1995) 57 F.3d 1517, 1520. Once a TMDL is established, all National Pollution Discharge Elimination System (NPDES) permits must be consistent with the waste loading allowed by the TMDL. In 2001, the Los Angeles Regional Water Quality Control Board established a TMDL for trash in the Los Angeles River. Trash is defined as waste that has not been properly discarded. The regional board set the trash TMDL at zero, to be phased in over 14 years. The NPDES permit regulating stormwater discharges from Los Angeles County and 84 other local entities would have to comply with the zero-trash mandate. The State Water Quality Control Board and Office of Administrative Law approved the trash TMDL in 2002, as did the federal Environmental Protection Agency. A coalition of 22 cities sued the EPA in federal court, but lost a Ninth Circuit ruling last year in , 411 F3d 1103 (see , August 2005). In state court, the cities sued the state and Los Angeles water boards. After the case was moved to San Diego County, the Superior Court found a number of problems with the TMDL and ordered the water boards not to implement it. Both sides appealed, and the Fourth District overturned portions of the Superior Court decision favoring the cities — but not the entire decision. The Superior Court ruled that the TMDL was faulty because the water boards did not conduct an “assimilative capacity study,” did not consider economic factors, applied the TMDL to the Los Angeles Estuary even though it was not on the 303(d) list, and failed to prepare an environmental impact report or its functional equivalent. The Fourth District rejected the first three grounds for dismissing the TMDL but accepted the environmental review argument. Under an assimilative capacity study, the water board could essentially decide that some amount of trash would not harm beneficial uses of the river. The water boards, though, had decided that because the river merely transports trash without diluting the pollutant, no level of trash was acceptable. The Fourth District found that federal law mandates no such study, and noted that the TMDL requires the regional water board to reconsider the target of zero after a 50% reduction has been achieved. As for economic considerations, the court noted that the TMDL addressed the cost of several types of systems to capture and remove trash from storm drains, including a system that would cost $1.8 billion for installation and 10 years of operation and maintenance. That was good enough for the appellate panel. Regarding the estuary, described as part of Queensway Bay in Long Beach, the court found the “TMDL’s identification of the estuary as impaired could have been clearer, but we conclude it was sufficient to put all affected parties on notice.” The issue of environmental review is where the water boards stumbled. The environmental documentation consisted of a checklist that, according to the court, the regional board “obviously intended” to be the functional equivalent of a negative declaration under the California Environmental Quality Act. On appeal, the water boards argued that the checklist met the requirements of a first tier EIR. The court did not buy it. “ e conclude the check list and trash TMDL are insufficient as either the functional equivalent of a negative declaration or a tiered EIR. Moreover, an EIR is required since the trash TMDL itself presents substantial evidence of a fair argument that significant environmental impacts may occur,” Presiding Justice Judith McConnell wrote for the court. “Neither the checklist nor the trash TMDL includes an analysis of the reasonably foreseeable impacts of construction and maintenance of pollution control devices or mitigation measures.” The cities appealed portions of the Superior Court ruling in favor of the water boards, but the Fourth District upheld the lower court. The Fourth District decision appears to let the TMDL take effect once the water boards perform an adequate environmental review. In March, the cities asked the state Supreme Court to review the case. First Case: , No. E037079, 06 C.D.O.S. 845, 2006 DJDAR 1126. Filed January 26, 2006. Modified February 27, 2006, at 2006 DJDAR 2300. The Lawyers: For the city: James Markman, Richards, Watson & Gershon, (714) 990-0901. For the water board: Jennifer Novak, attorney general’s office, (213) 897-4953. Second Case: , No. D043877, 06 C.D.O.S. 797, 2006 DJDAR 1145. Filed January 26, 2006. The Lawyers: For the cities: Richard Montevideo, Rutan & Tucker, (714) 641-5100. For the water board: Gregory Newmark, attorney general’s office (213) 897-2000.

A decade-long effort to adopt a plan for protecting endangered species in the Coachella Valley is threatening to unravel, at least partially. Some cities that would be covered by the multiple species habitat conservation plan (MSHCP) appear hesitant to approve the plan because it could block large-scale development projects. While some cities are reluctant, however, three of the biggest local players — Riverside County and two water districts — say they are committed to the plan and will move forward with or without the cities. Whether a plan signed by some, but not all, local entities would satisfy regulatory agencies and environmentalists is uncertain. Plan backers, including development industry leaders, say it would be foolish for the cities to reject the plan because, without it, any hopes of streamlining Endangered Species Act reviews would be lost. "A multiple species plan will give a certainty to our builders," said Ed Kibbey, executive director of the Desert Chapter of the Building Industry Association of Southern California. "If the plan is passed, it means there is a line in the sand. You can build on this side of the line, and you probably can't on that side of the line." Which is precisely the problem for some cities and developers. Proposed growth areas in the cities of Indio and Desert Hot Springs fall on the conservation side of the plan's line in the sand. In February, the Indio City Council voted not to support the MSHCP unless the plan opens up 2,500 acres for development in the Indio Hills, north of town. Indio Mayor Gene Gilbert said at the time that adopting the plan would be "developmental suicide." In Desert Hot Springs, the plan would apparently preclude the proposed 1,700-acre Palmwood development because the site, on either side of Highway 62, lies in a conservation area. According to preliminary environmental review documents, Palmwood would have 2,200 dwelling units, 45 holes of golf, a golf school and a 200-room resort. Some Desert Hot Springs leaders see Palmwood, backed by Landmark Properties U.S. and pro golfer Phil Mickelson, as a potential savior for their city, which has struggled financially. The MSHCP also could halt a proposed "new town" between the City of Coachella and the Salton Sea. Developer Tim Blixseth has proposed 10,000 housing units in the new town of Paradise Valley. That project, however, is proposed for unincorporated Riverside County, and the county is one of the plan's biggest backers. Pressure to adopt the plan is increasing. In early February, the board of the Coachella Valley Association of Governments (CVAG), which has overseen plan preparation, voted 10-1 to endorse the plan. Indio's representative was the lone dissenter. The CVAG vote came only after urgent words from county Supervisors Roy Wilson and Marion Ashley. Wilson suggested that he would oppose future annexation requests of any cities that vote against the plan. (Wilson's threat prompted Sen. Jim Battin (R-La Quinta), a longtime political foe, to introduce state legislation that would outlaw attempts to menace public officials into voting certain ways.) Besides the political pressure, there is legal pressure. Development activities related to the fringe-toed lizard, an endangered species, have been occurring under a memorandum of understanding (MOU) between CVAG and the state Department of Fish & Game. That MOU has been extended several times and is due to expire June 30, according to Jim Sullivan, CVAG's director of environmental resources. The state has made clear it will not grant another extension. Without either the MOU or the conservation plan, there would be no approval under the California Endangered Species Act for activities that harm the lizard or its habitat. There is an existing HCP for the lizard, but that provides only federal clearance, Sullivan said. The voluminous MSHCP was developed under the assumption that all 18 "permittees" — nine cities, the county and eight other government entities, including Caltrans — would adopt the plan. It's not clear what would happen if one of more of the permittees refuses to approve the plan. "It's really an all-or-nothing proposition," Ashley told The Desert Sun newspaper. Officials with CVAG have been negotiating with representatives of reluctant cities in hopes of winning plan approval. However, major changes in the plan would require recirculation of the environmental impact report, Sullivan noted. Changes also could threaten federal and state backing. The plan is an attempt both to accommodate development and to preserve rare plants and animals in one of the state's fastest growing regions. The Coachella Valley experienced annual growth of 4.1% during the 1970s, 5.8% during the 1980s and 3.4% during the 1990s. The state Department of Finance predicts a population increase of 145,000 — growth of a bit less than 3% annually — from 2000 to 2020. Growth, however, has come with environmental consequences. The plan covers 1.1 million acres in the middle of Riverside County. It designates 747,000 acres in 21 areas for conservation. The plan protects 27 species of plants and animals, 11 of which are already listed as endangered or threatened. The majority of the conservation land is already in public hands, including a huge chunk within Joshua Tree National Park. Still, another 140,000 acres would need to be conserved through public acquisition, dedication, deed restriction or conservation easement within 30 years. The permittees are responsible for lining up 90,000 of those acres. The plan covers 75 years and would cost an estimated $1.8 billion to carry out. Helping fund the plan would be development fees of about $1,200 per house, or $5,200 per acre for commercial projects. Proposed development outside of conservation areas would not have to undergo review of potential impacts to the 27 species. The plan would serve as both an HCP for federal purposes and as a Natural Communities Conservation Plan under state law. A new joint powers authority, called the Coachella Valley Conservation Commission, formed by the cities, the county and the Coachella Valley Water District would implement the plan. The plan is unusual in that it draws "hard lines." Most conservation plans — including the MSHCP for western Riverside County — have fuzzy lines demarking potential conservations areas. Within those areas, conservation is encouraged and development requires special review. The Coachella Valley plan clears development outside of conservation areas from species studies and regulation. Up to 10% of land within conservation areas could be developed, but plan authors envision single houses on large lots, not new subdivisions or commercial development. Also, unlike some other conservation plans, the Coachella Valley MSCHP underwent independent scientific review. The environment dictated where the lines should be drawn, explained Bill Havert, executive director of the Coachella Valley Mountains Conservancy. The conservancy has served as the consultant that wrote the plan. "Once you start looking at the biology carefully, you find that these species are fairly concentrated," Havert said. The choice, then, is to protect those areas "or lose the species." Some owners of property in conservation areas have expressed concerns or outright opposition. The plan calls for the conservation commission to acquire property only from willing sellers and at fair market value. How to set that value is a worry to some people. In an opinion piece for The Desert Sun , Bruce Colbert, executive director of the Property Owners Association of Riverside County, wrote: "There are no state or federal funds allocated for the plan. It could take 75 years, if ever, for sufficient funds to become available — certainly longer than the lifetime of many property owners. Their land would be taken without just compensation." Havert, however, noted that government agencies in the area have acquired 60,000 acres for conservation since work on the plan began during the mid-1990s. "There is a significant track record here of doing appraisals of land that is considered sensitive habitat and buying land from willing sellers," Havert said. Local BIA head Kibbey said he understands that individual property owners have concerns. But, for the good of the industry, the plan deserves approval, he said. The plan provides certainty, which is the most important thing to developers, he said. As it now stands, endangered species reviews take an average of eight years to complete, he said. Certainty is also important to the Coachella Valley Water District, said Monica Swartz, a district biologist. "It makes our operations in the future cheaper and easier to accomplish. We don't have to worry piece by piece about how we're going to preserve these things," she said. Swartz said there is a great deal of momentum behind the plan, despite some cities' reluctance. "We're planning on going ahead with this no matter what," she said. Representatives of Imperial Irrigation District and Riverside County have expressed similar sentiments. Contacts: Jim Sullivan, Coachella Valley Association of Governments, (760) 346-1127. Bill Havert, Coachella Valley Mountains Conservancy, (909) 790-3405. Ed Kibbey, Building Industry Association of Southern California, Desert Chapter, (760) 360-2476. Monica Swartz, Coachella Valley Water District, (760) 398-2661. Plan website: www.cvmshcp.org

You might wonder how many times I can write a blog highlighting how different California is from the rest of the country when it comes to density. After all, I started on this screed back in 2001, when I co-authored Who Sprawls Most?   And just a month ago I wrote a blog noting that, according to the Census Bureau, California metros are densifying while their counterparts elsewhere are not. But evidence just keeps on coming. Now the Environmental Protection Agency has provided a compelling long-view look at density patterns in major metropolitan areas in the United States � which reveals this pattern has held over the past 60 years. The other day EPA issued the second edition of its turgidly titled Our Built and Natural Environments: A Technical Review of the Interactions Between Land Use, Transportation, and Environmental Quality , an overview of a wide variety of environmental impacts of human settlement and the built environment. And buried in that report � Exhibit 2-2 on page 8 � is a pretty interesting table examining metropolitan population growth versus urban expansion in the last 60 years, since the Census Bureau first started keeping track of such things in 1950. What the table shows is that for the 39 largest metro areas that were delineated in 1950, population grew 150% over the 60 years while the urbanized area expanded 400% -- meaning urbanized area grew 2.5 times faster than population. (The Census defines an urbanized area as any Census tract that has a population of 1,000 persons per square mile or more, so it tends to underestimate low-density sprawl � but it's still a useful measure.) Some of the statistics are truly frightening. For example, Metro Pittsburgh's population grew by 19% while its land area grew by 257%. Metro Detroit's population grew by 36% while its land area grew by 216%. Metro Boston's population grew by a healthy 87% -- but its land area grew by 665%. These are the parts of the country that are truly sprawling. And California? Nope, not sprawling. In fact, San Diego, LA-Orange County, the Inland Empire and San Jose all saw its population grow faster than urbanized area � something that only seven of the 39 metro areas achieved. Overall, California's metros added 240% to its population and only 195% to its land area. For the non-California metros among the 39 metros studied, population grew by 150% and land area grew by 455%. This chart showing these figures for selected metros in California and elsewhere gives the general picture. (I derived this chart from the table in the EPA report.) It's interesting to note that Miami and Houston followed the California pattern, as did � to a lesser extent � Dallas and Houston

On Tuesday, San Diego Mayor Bob Filner announced that he had selected Bill Fulton, this publication's founding editor and publisher, as the city's new planning director.  Rather than comment on this surprising turn of events, we thought we'd simply provide a rundown of blog and media coverage. The surprise announcement took place early Tuesday morning before an assembled crowd that included some 500 employees of the city's Development Services Department. Mayor Filner's official press release can be found here. Almost before the press release was up, however Voice of San Diego had posted a blog highlighting "Four Things to Know" about the new planning director. (We particularly liked "He's Kind Of A Big Deal") Later in the day, Voice posted a short Q&A that was conducted right after the announcement, which included discussions about San Diego's neighborhoods, Civic San Diego, use of Specific Plans, and Fulton's views on redevelopment.  Later in the day, Roger Showley, the Union Tribune's longtime real estate writer, posted his version of events , complete with a photograph of Fulton with former planning director Bill Anderson and former city architect Mike Stepner. Showley and Fulton have known each other since the 1980s, when they were young real estate journalists together. Later, NBC San Diego  and the Ventura County Star , Fulton's hometown newspaper, also published articles -- and for once, the Star did not put the story behind its pay wall.

The latest illustration of intergovernmental non-cooperation examines the circumstances in which cities can route sewer lines through county rights of way, all without county approval. The facts involve the City of Los Angeles upgrading the capacity of its line to its Hyperion Treatment Plant in Playa Del Rey. Serving the coastal portions of the City, the existing 48-inch line was installed in 1958 but lacked the capacity to serve major storm events. The City studied various options for installing a new 54-inch diameter line. Most of the routing would take place in City streets, but one route involved use of public streets and a public parking lot located in the jurisdiction of the County. For environmental reasons, the City ultimately approved the alignment involving County streets. The County filed a petition for writ of mandate, alleging violations of the Public Utilities Code and CEQA. The trial court rejected the CEQA claim, but granted relief pursuant to the Public Utilities Code claims, effectively holding that County approval was required. The City appealed. The appellate court reversed the trial court. The City made two claims. First, the City argued that it possessed the inherent police power to construct in the County's street. Alternatively, it argued that Public Utilities Code sections 10101 through 10105 gave it that authority. The Court of Appeal declined to accept the City's �inherent power" argument, finding that sufficient authority in the Public Utilities Code supported the City's action. In interpreting the statutory scheme, the appellate court recognized that cities have the express right to build utilities lines outside of its borders. (Public Utilities Code section 10101.) If the proposed line is to be located in another city, then sections 10102 and 10103 call for interagency review, with the option to go to court to resolve the necessity of the proposed use in the neighbor city right of way. However, the court concluded that these procedures do not apply if the affected right of way is a county, as a county is not a municipal corporation but is a political subdivision of the state of California. In those circumstances, the city can proceed when the alignment is necessary and convenient. The appellate court stated that the appropriate form of judicial review was ordinary mandamus, and that the decision of the approving city would not be overturned unless arbitrary or capricious, a very deferential standard. The appellate court concluded that the trial court had effectively reweighed the evidence, and failed to adhere to the necessary level of deferential review as to what was necessary or convenient. The matter was reversed and remanded to the trial court to apply the correct standard of review. County of Los Angeles v. City of Los Angeles (March 14, 2013, B236732) ___Cal.App.4th ___.

Early one Sunday morning in early February, the South Bay Power Plant in Chula Vista – a fixture on San Diego Bay for decades – was blown up. But it wasn't because terrorists had targeted the plant. It was because city and port officials – along with a developer and environmental groups – had finally reached agreement, after 14 years of negotiation, on how to move forward with a development project. The Chula Vista Bayfront Master Plan – which calls for the construction of thousands of hotel rooms, a commercial harbor, a conference center, and 1,500 townhomes on a small portion of the 556-acre site – is being touted by land use experts around Southern California as a win-win for the developer, the City of Chula Vista, the Port of San Diego, and environmental groups.  The deal was completed after 14 years of negotiation and threatened lawsuits and even included the participation of a former Center for Biological Diversity employee who wound up working for the developer, Pacifica Companies. The Coastal Commission approved the project unanimously, leading Pacifica's Alison Rolfe to quip: "I got a call from the governor's office. They never heard of unanimous support!" The key deal point appears to be a land swap between Pacifica and the Port, which allowed Pacifica to take control of the developable portion of the property while the Port focused on conservation. But ultimately it was the willingness of the Bayfront Coalition – an assemblage of environmental groups that threatened litigation over the project – to sit down and negotiate pre-lawsuit that appeared to make the biggest difference. In the end, the parties signed two settlement agreements – a document typically negotiated after a lawsuit is filed, not before – in order to nail down the deal points. "One thing about CEQA," says Rolfe, who previously worked for both the Center for Biological Diversity and the Chula Vista mayor's office. "Mitigations don't always get done, which is a nice way of saying it. We needed to have more than mitigation in a CEQA document, we want a stipulated settlement agreement and some enforcement up-front. Not a lawsuit, just let's agree, so we have the confidence to know what's going to get done after the project goes through and not rely on CEQA." The story of the Bayfront Master Plan begins in 1999, when the Port of San Diego purchased the South Bay Power Plant, a 700-megawatt plant that had sat on the bay in Chula Vista since 1960. The Port leased the plant to power generating companies until 2010, when it was decommissioned. Beginning in 2002, however, the Port and the city began to negotiate the possibility of a development project on the property. "It is definitely a scar," said Ann Moore, president of the Port board. "We took a look at it and thought, we need to bring this down." Now a lawyer with Norton, Moore and Adams in San Diego, Moore is a former Chula Vista city attorney. "Early on there wasn't 100% commitment at the political level," says City Manager Jim Sandoval. "This coalesced over time. At the Port, we have one vote out of seven. When you are dealing with projects like this and deal with more than one agency, it takes a tremendous amount of financial resources. Unfortunately we have been having to cut gardeners and custodians, but we hung onto this project team, because of the benefit to the community." He said the port and the city each took on what they were good at – large-scale planning in the case of the city, real estate expertise in the case of the Port. The entire deal could have been scotched, however, if environmentalists had decided to fight it and litigate.  But the environmental coalition took a different approach. "What we decided to do," says Laura Hunter of the Environmental Health Coalition, "was come in out of our foxholes, just try to sit down together and look at anything that could be done, listen to each other about what their interests are. We started looking out for each other's interests. Sitting in one of our analysis meetings, the guy from the business association began to learn about (bird) nesting, and I learned what internal rate of return was." She added: " Instead of spending our energy vilifying each other, we could talk about what the issue really is, once you get a trustful communication going, then all things are possible." The critical element of the deal was a 3-for-1 land exchange between the Port and Pacifica, with the Port surrendering 35 acres of developable land in exchange for 97 acres of conservation land. Pacific surrendered a net of more than 60 acres, but of course received acreage in return that could actually be developed. The power plant itself was located on the bay side of I-5 at approximately L Street. The Chula Vista Marina is located just north of the site, at approximately J Street. The Sweetwater Marsh National Wildlife Refuge is located even farther north, at approximately E Street. Under the land transfer, Pacifica gave the Port 95 acres of land adjacent to the wildlife refuge for conservation purposes. In exchange, the Port gave Pacifica 35 acres of developable land adjacent to the Marina. Because Pacifica now has a smaller footprint on which to build, the developer had to propose building heights of up to 200 feet. Ordinarily, such tall buildings might stimulate strong opposition, but opposition in this case was mitigated by two factors. First, the buildings were replacing an eyesore that had blocked the bay from the city for 50 years. And second, it was clear that the tall buildings were paying for the conservation land via the land trade. "Once everybody understands the underlying principal of why we had to do that , everybody was advocating for the land trade," said Rolfe. Sandoval said the main goal was to protect view corridors, rather than simply keep buildings short. "I've never met anybody who can see through a  one-story building," he said. "To me it's more important to protect view corridors than building heights. Yet that's something people never do." Pull-quote "I got a call from the governor's office. They never heard of unanimous support!"

In Alliance for the Protection of the Auburn Community Environment v. County of Placer , the Third District Appellate Court held that California Code of Civil Procedure section 473 does not provide relief from a petitioner's mistake that resulted in the late filing of a CEQA petition. While the provisions of section 473 are to be liberally construed, the statute cannot be construed to offer relief from mandatory deadlines deemed jurisdictional in nature such as Public Resources Code section 21167. In 2008, Bohemia Properties, LLC submitted an application to the County of Placer (County) for the development of a 155,000-square-foot building. The County required that an environmental impact report (EIR) be prepared for the project. After the requisite hearings, the Planning Commission certified the EIR and approved the project in July 2010. Alliance filed an appeal to the Board of Supervisors, which was heard on September 28, 2010. The Board denied the appeal and again certified the EIR and approved the project. The County timely filed and posted a notice of determination on September 29, 2010. Pursuant to Public Resources Code section 21167(c), an action to set aside an EIR must be filed within 30 days from the date of the filing of the notice of determination. In this case, the Alliance was required to file its CEQA petition on or before October 29, 2010. However, Alliance did not file its petition until three days later on November 1, 2010. Bohemia filed a demurrer to the petition, alleging the petition was not timely filed. Alliance filed a motion for relief under CCP section 473, as well as an opposition to the demurrer, on the grounds that the late filing resulted from a "miscommunication with the attorney service as to the deadline for receipt of the Writ." The trial court sustained Bohemia's demurrer without leave to amend and denied Alliance's motion for relief on the grounds of mistake and excusable neglect on the grounds that the 30-day statute of limitations contained in Public Resources Code section 21167 is mandatory and does not provide for an extension of time to file a petition based on a showing of good cause. In interpreting CCP section 473, the appellate court looked to the California Supreme Court case of Maynard v. Brandon (2005) 36 Cal.4th 364 ( Maynard ). In Maynard , the Supreme Court considered whether relief under section 473 was available for a party who failed to comply with the 30-day statute of limitations in the Mandatory Free Arbitration Act. The Court held that it did not, noting that section 473 provides relief only for procedural errors (i.e., untimely demands for expert witness disclosures, etc.). The appellate court also looked to Kupka v. Board of Administration (1981) 122 Cal.App.3d 791, wherein the court held that section 473 could not operate to provide relief for the late filing of a petition for writ of mandate to review an administrative decision on the basis that statute of limitations are not flexible in nature, but are firmly fixed, unless the legislature expressly provides for an extension based on a showing of good cause. The court of appeal in this case noted that while the provisions of section 473 are to be liberally construed generally, and further, that CEQA should be broadly interpreted to protect the environment, CEQA also clearly requires prompt resolution of lawsuits claiming violations of it. Alliance argued that other courts have required relief to CEQA's 30-day statute of limitations, but the court distinguished each case Alliance offered in support of its argument and specifically noted that none of the cases proffered by Alliance related to section 21167. Moral :  If you are a petitioner and you are going to file a petition for writ of mandate to challenge an agency's actions under CEQA – whether that challenge is procedural or substantive in nature – compliance with the statutes of limitations under Public Resources Code section 21167 are mandatory. CEQA provides three distinct statutes of limitations - a 30-day, 35-day, and 180-day statute of limitations - depending on the specifics of the CEQA challenge and whether a notice of exemption or notice of determination was properly filed and posted. Strict compliance is required as failure to timely file a petition for writ of mandate pursuant to CEQA will not be excused.   Alliance for the Protection of the Auburn Community Environment v. County of Placer (April 2, 2013, C067961) ___Cal.App.4th ___; 2013 Cal. App. LEXIS 256 .

Is 55 stories too high for a building in Hollywood? Neighbors think so -- especially when it will dwarf the iconic Capitol Records building next door. Opponents recently circulated an online petition called  "Stop the Millennium Hollywood Project", which calls for the project to be modified "to a reasonable scale". You can also hear a debate about the project -- featuring CP&DR publisher Bill Fulton -- on a recent episode of Which Way LA ?  San Diego Mayor Plans to Separate Planning Department From Development Services  New San Diego Mayor Bob Filner is appears ready to pull the planning department out from under the development services department -- four years after they were merged.Last week, Kelly Broughton, director,  of the city's planning department and development services, department announced that he was stepping down to take a similar position with the city of Chula Vista. Director Broughton's vacancy has created an opportunity for the mayor to reshape San Diego's planning and development services and fulfill his initial goals for separating the two departments. This separation will allow the planning department to focus on neighborhood-level decisions and prioritize for a more efficient community plan update process. Director Broughton will stay on for another month while the mayor looks for an interim director and works out the details for the departments' new arrangement.  Alhambra Says...It's Time to Complete the 710 Freeway! Los Angeles Times Last week, the city of Alhambra voiced its support to complete the 710 Freeway via a tunnel that would connect the 710 Freeway and the 210 Freeway. To raise awareness, Alhambra's mayor has proclaimed July 10th as "710 Day" in the city with a possible streetfair and other public outreach efforts. The controversial tunnel has resisted by its surrounding communities for years, arguing that the extension would bring negative traffic impacts into their neighborhood. The MTA is currently undergoing an environmental study that options different strategies for completing the freeway with a final draft of the study due next year.  Fresno City Council Supports Health-Sciences Campus Outside City Limits The Fresno Bee Despite support for the proposed health campus to be located in downtown Fresno, City Council supported the developer's plans to build outside the city's limits at Millerton Lake. According to the project developer, the space needed for the campus is larger than any downtown site can provide. Council's support for the project (location) also added to the divide between Council Members and the Mayor's efforts to focus new development in Downtown Fresno. The new university will open next year and the city will still be able to weigh in on the project during the planning process. Millerton Lake was one possible site for the the campus that eventually became UC Merced.