The words "pedestrian and bicycle infrastructure" probably cannot motivate the masses the same way an unguarded 8-year-old in a faded crosswalk can. That's understandable. According to the Centers for Disease Control, two-thirds of drivers nationwide exceed speed limits around schools. The result is that one child ages 5-15 per 200,000 are killed as pedestrians each year.  Funding the sorts of safety projects—and neighborhood co-benefits—that would improve those grisly statistics tend to make up a small fraction of transportation spending in the United States. But a safety program aimed at schoolchildren that originated a little over a decade ago in Marin County has found a way to introduce pedestrian and bicycle infrastructure funding into budgets at nearly every level of government. Tugging at the heartstrings of parents while also promoting policies near and dear to smart growth advocates, Safe Routes to School (SRTS) reaches out to school officials, parents, students and local government officials on encouraging more kids to walk to school and making it safer for those who do. While the program is explicitly focused on the safety of schoolchildren, urban planners see it as another way to bolster the case—and get public support—for programs that make neighborhoods more pedestrian-friendly for everyone.  "This program is one of the best leverage points for creating more walking and biking in our communities," said Jessica Meaney, California Policy Manager for the Safe Routes to School National Partnership, a network of organizations focused on implementing Safe Routes to School programs. Two generations ago, walking and biking didn't need advocacy. They were the norm and driving to school was the curious exception. According to Low-Income Schools and Communities Study released last year by Caltrans, as recently as 1980 the majority of children living within a 2-mile radius of a school walked or bicycled to school.  Today, that number has dropped to less than 15%.  Not coincidentally, said the study, 5% of children between the ages of 6 and 11 were considered to be overweight or obese in 1980.  "These statistics point to a rise in preventable childhood diseases, worsening air quality and congestion around schools, and missed opportunities for children to grow into self reliant, independent adults," the study concludes. In recognition of these trends, SRTS caught on in Marin because, according to the Marin Bicycle Coalition, up to 27% of the county's morning commuters consisted of parents driving their children to school in the largely affluent, suburban county. Ironically, this contributed to a higher-than-average carbon footprint for the environmentally conscious county. The coalition then set up nine test cases in a pilot program. The coalition reports that by the end of the program, the participating schools experienced a 57% increase in the number of children walking and biking and a 29% decrease in the number of children arriving alone in a car – all without heavy investments in development or infrastructure. Instead, SRTS attempts to make profound changes through interventions as subtle as signage, bike lanes and routes, sidewalk fixes, and outreach campaigns.  The program went countywide in 2003 and was incorporated into federal transportation funding authorization of 2005.  Ten years since its inception, pending state legislation seeks to make the program even more widespread and to engrain the program in neighborhoods that are not nearly as affluent as those in Marin County.  AB 539 would authorize local governments to double the base fines for speeding in school zones where existing law prohibits local governments from reducing the speed limit. AB 516, sponsored by Manuel Pérez (D-Indio), would help ensure low-income communities are able to bring SRTS programs to their local schools. AB 516 would require that at least 50% of grants go to those communities and it would require greater public participation in the SRTS planning process.  AB 516 has been re-referred to the Committee on Appropriations while AB 539 was passed by the Assembly Public Safety Committee.   AB 516 was prompted in part by the Caltrans study that found that only 44% of state Safe Routes to School grants went to low-income communities. The report notes that community infrastructure in low-income neighborhoods often dissuades children from walking and biking. The report notes that low-income youth are up to three times more likely to be obese than higher-income peers and that these obesity levels are due in part to the lack of opportunities for active recreation in low-income neighborhoods.  "Disadvantaged and rural communities tend to lack the infrastructure -- sidewalks, bike lanes, crosswalks, etc. -- that help to make communities walkable and improve quality of life," said Pérez. "The Safe Routes to School program has been an effective tool to improve walkability and pedestrian and bicyclist safety."  The report notes that the governor's Strategic Growth Council has recommended that investments in personal mobility be targeted at low-income neighborhoods.   Caltrans recently issued a call for projects to fund $42 million in projects over the next two years and has established a new website -- http://www.casaferoutestoschool.org -- to assist cities interested in implementing SRTS programs. That funding depends on the passage of a new federal Transportation Act.  Visually, the program can be summed up by the street signs commonly seen around school zones: two stick figure children carrying books as they walk to class. But in reality, those signs have a decreasing amount of relevance today. The majority of children arrive at elementary school in the back seat of a car. Safe Routes to School's  aims to change that habit. The benefits, they say, range from decreased dependence on autos to the health benefits of walking to greater connections between kids and their neighborhoods.  These statistics are, in part, a legacy of school busing programs that became widespread in the 1970s. While aiming to create more diverse student bodies, those programs also took some students away from local schools, thus forcing them to rely on buses or parents and erasing the traditional walk to school. At the same time, the preponderance of those cars and buses makes many routes less safe and palatable for those kids who can walk.  "15 to 20 percent of morning congestion is caused by parents dropping their kids off at school," said Alexis Lantz, Planning and Policy Director at the Los Angeles County Bicycle Coalition. "And, I think, of the school-age children in the city of Los Angeles, 25 percent of them are overweight." The dual goals of reducing congestion and improving the health of students are part of the reason the City of Los Angeles recently approved a $1.2 million study to set up a citywide Safe Routes to School program and collision database. It's an effort to streamline the city's applications for Safe Routes to School grant money available through the Caltrans and the U.S. Department of Transportation's Federal Highway Administration. Both of these funding programs are administered by Caltrans.  By collecting data on where collisions are occurring, by what transportation mode, and near which schools, the study and database are expected to help the city identify areas in need of attention before accidents occur. "Before, whenever there was a fatal collision, everybody would race to the site to see how we could have prevented it," said Bruce Gillman, a spokesperson at the Los Angeles Department of Transportation. The city had previously applied for grant money, but always on an ad hoc basis by council district. The citywide program will replace those 15 district applications with one citywide application, a move expected to greatly increase the chances of winning these competitive grants. "It will be an infusion of literally millions of dollars," Gillman said. The funding itself is intended for a combination of infrastructure projects and non-infrastructure efforts. The latter mainly takes the form of safety education campaigns, which are as important as any improvements made to the built environment, according to education advocates. "It's one thing to put a sidewalk out there, and it's one thing if you put out bike lanes, but you really need to, especially with kids, do the safety education. Especially with parents," Lantz said. "Parents have their own fears about walking and biking to school, and that extends beyond just road safety to personal safety in regards to crime and gangs." And being that these education-heavy programs don't necessarily require shovels in the ground, they are able to cheaply achieve some of the walkability goals of the smart growth movement. "It creates an environment of people being out and walking the streets and doing activities that really support place-making and community-building," said Pippa Brashear, project manager at the Project for Public Spaces.   Gail Carlson is the public health program coordinator in Riverside County, where she has been working to implement a Safe Routes to School program at 13 elementary schools. The program's goal is to get more kids walking and biking to school, and for Carlson, that means focusing on education. "Even though sidewalks are being built, kids aren't walking. For whatever reason that is. So we need to complement that with the education and the encouragement and provide that vision that there are alternative modes that kids can get to and from school safely," said Carlson. The Riverside County program runs Safe Routes to School workshops to educate parents, and is encouraging programs in schools like "Walking Wednesdays" and "Fit Fridays." Some schools have upwards of 200 kids participating in these events twice a week. One elementary school has a Safe Routes to School page in its yearbook. In addition to these educational efforts, Carlson said a few infrastructural changes have also been made since the county's Safe Routes to School program started in 2008. Visually striking red curbs and curbcuts are some of the basic improvements they've seen, but there have also been signs posted along some "walking bus" routes – paths used by parents who will walk their kids to school and pick up other kids along the way. But getting more kids walking to school takes more than just preaching the gospel. Often what drives implementation of a program is getting stakeholders to recognize when there are safety problems. "It means working with the teachers, principals, parent organizations, the students themselves to identify the problem areas, do walk audits, do bike audits, and create encouragement programs that don't necessarily take funding, they just take parent and staff involvement, and work with the community to build that support," said Lantz. And once these audits are done and programs are starting to form, cities have higher odds of winning grant money from the state or federal government to continue the work. This is good news for kids trying to get to school safety on foot or bike, but it can also be a boon for cities with few other resources to dedicate to pedestrian and bicycle safety efforts. "If a city has gotten a Safe Routes to School grant, that could very well be one of the few sources they're getting to directly address pedestrian safety and bike safety," said Meaney. At the same time, a SRTS program may depend on the nature of the surrounding environment. Thus, locales that intend to implement a Safe Routes program have incentive to consider the broader implications of place-making.  "It's sort of a chicken or an egg: Place-making supports SRTS (and vice-versa)," said Brashear, of project for Public Spaces. She said it's no good to have "kids walk down an uninhabited street with poor facilities or poor urban design."  Brashear recommends that planners use place-making strategies "by bringing activities to areas around a school and having design for a public space and public rights of way, that not only brings safety but also comfort and excitement. That really goes hand-in-hand with laying out the sidewalk."  Meaney said Safe Routes to School programs have impacts beyond the school zone. They also help cities comply with the stipulations of SB 375, the statewide law that requires regional targets for reducing greenhouse gas emissions. And by emphasizing safety around schools, the program makes those areas safer not only for kids—and other vulnerable populations—but for the entire community. "I think everybody benefits when we live in neighborhoods that kids can walk and bike to," said Meaney. Contacts: Caltrans Safe Routes to Schools Program Low-Income Schools and Communities Study (.pdf) Pippa Brashear, Project Manager, Project for Public Spaces, 212.620.5660 Gail Carlson, Coordinator, Riverside County Public Health Program, 951.358.7173 Alexis Lantz, Planning & Policy Director, L.A. County Bicycle Coalition, 213.629.2142 Jessica Meaney, Safe Routes to School National Partnership, 213.221.7179

When is $6.6 billion considered pocket change? When you're the state of California and you still have $10.8 billion to go.  Even with a tax windfall based on a better-than-expected economic projections for the next two years, that's where things stand with the budget deficit, which Gov. Jerry Brown is furiously trying to plug with a host of tax and realignment schemes. Land use has featured prominently in Brown's deficit-reduction strategies, and with his budget revise--released Monday--it appears that Enterprise Zones may be spared while redevelopment remains on the chopping block.  Ironically, the roughly $900 million Enterprise Zone program has relatively few friends in the state and has been fiercely criticized by researchers. Conversely, nearly every local official, real estate developer, and planner in the state has, either because of genuine conviction or parochial interests, issued resounding protests against the killing of redevelopment .  Brown reportedly salvaged Enterprise Zones in part because he did not have enough support in the Legislature to kill them. Instead, he proposes a reform that would extend tax breaks only to companies that can prove they are creating new jobs. His redevelopment proposal, however, remains unchanged.  Other elements of the governor's revised budget related to land use:  Closure of 70 state parks < pdf =">pdf"> , for a savings of $33 million Increase in Prop. 1B capital funding from $2.3 billion to $3.3 billion. Reinstatement of allocations for Prop. 1C funding, including 25 million for the Housing, Urban, Suburban and Rural Parks Program; $18 million for the Transit-Oriented Development Program; and $20 million for the Building Equity and Growth in Neighborhoods (BEGIN) Program. Prop. 1C grants had been suspended several months ago.  Elimination of over 40 state boards and commissions. The League of Cities identified several of interest to cities:  State Mining and Geology Board State Office of Gang and Youth Violence Prevention Commission on the Status of Women Governor's Office of Gang and Youth Violence Prevention California Council on Criminal Justice Fair Employment and Housing Commission Occupational Safety and Health (OSH) Standard Board  Selling non-essential properties such as the Los Angeles Memorial Coliseum, the Montclair Golf Course in Oakland, and most of the holdings of the Capital Area Development Authority in Sacramento.  To the last point, it's understandable that the governor would want to get some white elephants off the state's books. Lord knows, the Coliseum -- a partnership between the the state, the City of L.A., the County of L.A., and its main tenant, USC -- is a hot mess. But liquidation of CADA properties would kill one of the major drivers of development in downtown Sacramento, where CADA acts as the de facto redevelopment agency. Though this move would follow the spirit of the governor's intention to eliminate all redevelopemnt agencies, the difference is that CADA is a zero-sum game, since it's a state entity in the first place.  June 15 is the deadline for the Legislature to act on budget proposals.  --Josh Stephens

With different aspects of the City of Bell scandal continuing to come to light, "Bell" is starting to become short-hand for government corruption. Still, Bell's mess does not displace San Bernardino County from its longtime position at the top of the local government corruption charts. The situation in Bell is easily summarized: A small group of top-level city employees and four councilmembers abused their powers to get rich at taxpayers' expense. According to prosecutors and news investigations, the city officials may have received millions of dollars in excessive salaries. They simply wrote themselves large paychecks. Meanwhile, the corruption allegations, indictments and convictions in San Bernardino County are numerous, complicated and mostly concern real estate development. The latest twist was last week's indictments of former county Supervisor Paul Biane, developer Jeff Burum, former Assistant Assessor Jim Erwin and Mark Kirk, a former chief of staff for Supervisor Gary Ovitt and currently the county's director of governmental affairs. San Bernardino County District Attorney Mike Ramon and the state attorney general's office allege that Burum used campaign contributions, gifts and threats to get Biane, Ovitt and then-Supervisor Bill Postmus to approve a $102 million settlement of a lawsuit that Burum had filed against the county. Biane, Erwin, Kirk and Burum have denied wrongdoing. In 2006, the San Bernardino County Board of Supervisors voted, 3-2, to settle the lawsuit filed by Burum's Colonies Partners, which was developing a 440-acre housing and retail project in Upland called Colonies Crossroads. The developer had sued for reimbursement for providing flood control facilities that it said were the county's responsibility. The settlement smelled bad at the time, as the county had already won one appellate court ruling in the litigation, and both the county counsel's office and outside attorneys urged rejection of the settlement. Maybe it was merely business-as-usual. Back in the 1990s, consecutive county administrators, Harry Mays and James Hlawek, went down after running the corner office like a criminal enterprise. Both were fined and subjected to county civil suits to recover ill-gotten riches. Mays spent two years in prison; Hlawek got off with three years probation. A county investment officer and the treasurer/tax collector also did time for taking bribes from a local businessman in exchange for county contract favors. In 2004, then-Supervisor Gerald Eaves pleaded guilty to accepting unreported gifts from a businessman who received county approval to erect billboards on county land. The mayor of Colton and two city councilmen went down in the same bribes-for-billboards scheme. Around the same time, two San Bernardino councilmembers pleaded guilty to accepting bribes from a developer. To summarize: Seven elected officials and three appointed government officials in three jurisdictions were guilty of various corruption schemes from the mid-'90s to the mid-'00s. In March of this year, Postmus, the former supervisor who resigned under pressure as county assessor in 2009, agreed to plead guilty to three felonies for conspiracy to accept a bribe, conflict of interest and misappropriation of public funds. The plea deal included Postmus's agreement to testify in future criminal trials. Two of the felonies to which Postmus copped stemmed from payments and gifts that he and his political operations received from Colonies Partners. (The other felony concerns Postmus hiring people in the assessor's office to do nothing but political work. Postmus aide Adam Aleman had already pleaded guilty to destroying public documents and lying to a grand jury about the political operations on the public's dime; a different aide is awaiting trial.) When the district attorney and attorney general's office indicted Postmus last year, they did not name five un-indicted co-conspirators. However, it was easy to identify Biane (who voted for the settlement and lost re-election last year), Kirk, Colonies managing partners Jeff Burum and Dan Richards, and Colonies PR consultant Patrick O'Reilly as the five. All have vigorously denied wrongdoing, but the indictments appeared to be a matter of time. Erwin was already being prosecuted. Meanwhile, local newspapers have reported that the county has spent $21 million suing the City of Upland, San Bernardino Associated Governments (SANBAG) and Caltrans in an attempt to recoup some of the $102 million settlement cost. SANBAG recently increased its contract with attorneys defending against the lawsuit to $8 million. Upland has spent $3.6 million defending the lawsuit. That's more than $30 million in public funds spent in an argument over a lawsuit settlement that, according to prosecutors, was illegitimate. And there's so much more. In April, the attorney general's office charged county Supervisor Neil Derry with perjury and filing a false campaign expense report. The attorney general alleges Derry laundered $10,000 in campaign contributions, including $5,000 from area developer Arnold Stubblefield, through Postmus's political operation. Rex Gutierrez, a former assessor's office employee and Rancho Cucamonga councilman, is now a resident of Tehachapi State Prison. Postmus hired Gutierrez at the assessor's office as a favor to Burum, whose nonprofit company received a $42.5 million contract from Rancho Cucamonga to maintain affordability covenants at an apartment complex. Former San Bernardino County CEO Mark Uffer last year filed a whistle-blower retaliation lawsuit against the county after the Board of Supervisors voted 3-2 to fire him. Uffer alleges he was dumped because he tried to halt the county-Colonies settlement and reign in numerous other corrupt practices. A trial on Uffer's claims could provide the biggest show yet. John Pomierski resigned as Upland mayor in February, shortly before being indicted for allegedly trying to extort money from a nightclub and medical marijuana cooperative that were seeking city permits. Also indicted was John Hennes, an appointee to the city's building appeals board. District attorney's office investigators and the FBI raided Arrowhead Regional Medical Center, the county hospital in Colton, last fall. Investigators have not explained what they were seeking, but there are allegations that high-ranking county officials received free treatment at the hospital. District attorney's investigators also are known to be asking questions about the county's negotiations, since suspended, with potential developers of 1,200 acres of surplus county land in Rancho Cucamonga. The City of Bell? One simple scheme to take tax money. That's the minor leagues compared with San Bernardino County. – Paul Shigley

Here's some flattering news about the state of urbanism in California: the freeway capital of the world is also, apparently, one of the public transit capitals of the country. A recently released study by the Brookings Institution entitled "Missed Opportunity: Jobs and Transit in America" ranks four California metro areas in the top ten out of 100 metro areas studied, according to at least one metric.  The study ranks metro areas according to the percent of the working-age population with reasonably convenient access to transit. With 97% coverage, Honolulu took the top spot, with a slew of western cities following it. Cities in the bottom ten, many of which are in the South, had no better than 35% coverage.  California dominates the top-10 with these four metros:  No. 2 Los Angeles-Long Beach-Santa Ana, with 96% coverage.  No. 3 San Jose-Sunnyale-Santa Clara, with 95.6% coverage No. 5 San Francisco-Oakland-Fremont, with 91.7% coverage No. 6 Modesto, with 90.4% coverage Other California cities fared nearly as well: Stockton ranks 15th, the San Deigo area ranks 16th, the Sacramento area ranks 19th, Bakersfield ranks 21st, and Riverside-San Bernardino ranks 23rd. Some of these areas rank considerably lower when frequency of service is factored in.  That's the good news. The bad news is that, in many of these cities, the buses and trains that residents can board so easily won't necessarily take them where they want to go, or get them there in a timely manner. The study places a premium on the ability of commuters to go from home to work in less than 90 minutes. According to this metric, San Jose-Sunnyvale does great with 58.4% and a No. 3 ranking. But L.A.-Long Beach-Santa Ana falls to 69th place, with only 25% accessible. In the Riverside-San Bernardino area, only 6.6% percent of jobs are served by transit, ranking the area 96th.  It's probably not worthwhile to fret about individual rankings all that much. However, Brookings' methodology -- and its implicit statement about what transit planners' priorities ought to be -- is compelling, especially as California regions attempt to reduce their vehicle-miles traveled in accordance with SB 375.  California clearly has a lot of transit, with buses and trains going every which way. But the polycentric nature of all of these areas means that jobs are spread out and optimal routes are hard to come by--hence the "spatial mismatch" that can confound transportation planners. The Brookings research in many ways seems to dovetail with a study put out by the Public Policy Institute of California, which contended in its report "Driving Change" that the success of SB 375 depends in part on orienting transit towards employment centers rather than towards residential centers. It thus implied that TOD should focus more on offices than on apartments.  Put together, these two studies illustrate a concept that most planners have known all along: transit and land use planning must be coordinated for either to be efficient. California's transit agencies have done a great job covering vast amounts of territory. Now it's time for them to serve vast numbers of people.  --Josh Stephens

A state appellate court has ruled that a city and its redevelopment agency's approval of a term sheet for the development of a professional football stadium was not a "project approval" that required review under the California Environmental Quality Act Although the term sheet was detailed, and substantial sums had been spent on consultants leading up to that agreement, it did not commit the city to a definite course of action, the Sixth District Court of Appeal ruled. At issue was a term sheet approved in June 2009 by the City of Santa Clara and the city's Redevelopment Agency (collectively, "the city"). It set forth the basic provisions of a proposed transaction to develop a stadium that would be the home field of the San Francisco 49ers National Football League franchise. The terms included the stadium location, size, financing and operations (see CP&DR Deals, April 2008 ). The property for the proposed stadium is currently a parking lot leased to Cedar Fair, the owner and operator of Great America amusement park. Cedar Fair argued that the term sheet approvals had to be set aside because no environmental impact report (EIR) had been prepared pursuant to the California Environmental Quality Act (CEQA) prior to the governmental approvals of the term sheet. A Santa Clara County Superior Court judge held that preparation of an EIR was not required because approval of the term sheet did not constitute approval of a project under CEQA. A unanimous three-judge panel of the Sixth District Court of Appeal affirmed the decision in favor of the city. In deciding whether an EIR was required in the Cedar Fair case, the Court of Appeal looked to the seminal decision by the California Supreme Court in Save Tara v. City of West Hollywood, (2008) 45 Cal.4th 116 (see CP&DR Legal Digest, December 2008 ). Under the standard established in Save Tara, the key question in this case was "whether the term sheet, �viewed in light of all the surrounding circumstances,' �as a practical matter,' committed the city or the Redevelopment Agency �to the project as a whole or to any particular features, so as to effectively preclude any alternatives or mitigation measures that CEQA would otherwise require to be considered, including the alternative of not going forward with the project,'" Justice Franklin Elia wrote, citing Save Tara. In the Santa Clara situation, that standard was not met. Cedar Fair argued that, as a practical matter, the city had in fact committed itself to the proposed stadium project in light of the 39-page term sheet's high level of detail, subsequent statements made by city representatives in support of the stadium, and the large amount of money already invested by the redevelopment agency in the process of reaching an eventual final agreement. The Court of Appeal rejected that argument for several reasons. First, the court acknowledged that the term sheet was extremely detailed and that the parties preliminarily agreed to numerous provisions concerning the proposed stadium project. However, the court found that mere detail did not constitute the requisite "approval" under CEQA. The court pointed out that the Supreme Court in Save Tara rejected the idea that "once a private project had been described in sufficient detail, any public-private agreement related to the project would require CEQA review." Second, the court found that the term sheet expressly bound the parties only to continue negotiating in good faith and did not make the terms binding or even conditionally binding. By its very language, the term sheet "memorialize the preliminary terms"; mandated that the parties use the term sheet as the "general framework" for "good faith negotiations"; stated that the City "retain the absolute sole discretion" to make decisions under CEQA, including deciding "not to proceed with the Stadium project"; provided that the term sheet created " o legal obligations � unless and until the parties have negotiated, executed and delivered mutually acceptable agreements based upon information produced from the CEQA environmental review process"; made clear the parties' intent to not "create any binding contractual obligations" with respect to the development of the stadium or to commit any party to "a particular course of action"; and recognized that a no project alternative was still available. "The commitment to continue negotiations pursuant to the term sheet is unlike the commitment in Save Tara, where the City of West Hollywood contractually bound itself to sell land for private development conditioned upon CEQA compliance," Elia wrote.  Third, even though substantial sums were spent on consultants because of the magnitude and complexity of the project being negotiated, and even though such sums suggested that the city was "politically dedicated to the goal of developing a NFL stadium," those expenditures did not establish any legal commitment to any feature of the project that effectively foreclosed meaningful environmental review, the court ruled. Fourth, the court rejected Cedar Fair's arguments regarding the subsequent statements by city councilmembers and city staff members regarding the binding nature of the term sheet. Those statements contradicted the language in the term sheet, because the term sheet "cannot be reasonably construed as creating any contractual commitment on the part of to conditionally approve or undertake any aspect or feature of the stadium project," the court ruled. In summary, the Sixth District held that the allegations of the petition and the judicially noticed documents "do not demonstrate that the term sheet, in light of surrounding circumstances alleged, committed respondents, as a practical matter, to a definite course of action with respect to development of a stadium and effectively ruled out any mitigation measure or alternative, including the alternative of not going forward with the project." Still, Elia acknowledged, "The modern phenomenon of �public-private partnerships' for development makes the time of �approval' under CEQA more difficult to ascertain since a local agency may be a vocal and vigorous advocate of a proposed project as well as an approving agency. But �an agency does not commit itself to a project simply by being a proponent or advocate of the project.'" Santa Clara did approve an EIR for the stadium project last year. Cedar Fair has filed a separate lawsuit challenging the validity of that document.  The Case: Cedar Fair, L.P. v. City of Santa Clara, No. H035619, 2011 Cal.App.LEXIS 506. Filed April 6, 2011. Ordered published April 28, 2011. The Lawyers: For Cedar Fair: Sean A. Cottle and John A. Hickey, Hoge, Fenton, Jones & Appel, 408.287.9501. For the City: Karen M. Tiedemann and Juliet E. Cox, Goldfarb & Lipman, 510.836.6336.

The midpoint of 2011 is rapidly approaching, and that means the first glimpses of the "Sustainable Communities Strategies" created under SB 375 are beginning to emerge. In particular, the "Big Four" metropolitan planning organizations � those from the Los Angeles Area, the Bay Area, San Diego, and Sacramento � are all moving forward with their SCS processes, and discernable trends are beginning to emerge. Although there are 18 MPOs in California � all of which must create SCS's under SB 375 � the "Big Four" cover the communities in which almost 30 million people live. (Most of the rest of the population lives in the San Joaquin Valley, where 8 MPOs are attempting to coordinate their efforts to become, essentially, the fifth member of the Big Four.) No matter how you cut it, it's not easy for any of the Big Four to hit the targets for greenhouse gas emissions reduction being laid down for them by the state. The targets are expressed in terms of per-capita greenhouse gas emissions reduction, and the MPOs typically have a high-single-digit reduction (at least) by 2020 and a 12-15% reduction by 2035. That's tough to do � especially considering 2020 is now only a little over eight years away. On the other hand, it's not like the MPOs are starting from scratch. The MPOs have been working on "smart growth"-style blueprint plans for several years that move in the direction of an SCS. "All four MPOs have been doing this stuff for a long time," said Steve Heminger, executive director of the Bay Area Metropolitan Transportation Commission, at the recent General Assembly of the Southern California Association of Governments in La Quinta. "We have to remind ourselves to be proud of what we have already done." And, increasingly, the MPOs are working to sell the major changes in urban form based not on greenhouse gas emissions reduction per-se, but on what have come to be known as the "co-benefits" � shorter commutes, more land conservation, a shift away from the traffic congestion created by automobiles, and many other things. As SCAG's Hasan Ikhrata said at the General Assembly, maybe the greenhouse gas emissions reduction should be considered the co-benefits compared with everything else. For better or worse, however, that's not how SB 375 is set up. Because it's largely an implementation mechanism for the AB 32, the greenhouse gas emissions reduction law, SB 375 is � in technical terms � an exercise in air-quality modeling, where different strategies are manipulated in different ways to try to hit the targets. So far, the San Diego Association of Governments is the first out of the box with a draft SCS (as required by law), but Sacramento has also done a lot of work on it. Meanwhile, MTC, partnering with the Association of Bay Area Governments, recently released its "Initial Vision Scenario," which moves a lot of development around the region (see CP&DR Vol. 26, No. 8, April 2011 ), and the two COGs within SCAG that "took delegation" � that is, agreed to do their own SCSs � have released drafts. The SANDAG experience so far is telling. Two aspects of the draft SCS in particular are worth noting.  The first is the fact that SANDAG chose to take the SCS out 40 years, to 2050, rather than 25. SANDAG's still got to hit the 2020 (7%) and 2035 (13%) targets, of course, but the longer time frame does allow the region to put more things in place and see how they play out over a longer time frame. The second � which smaller MPOs are going to have a tough time replicating � is a really aggressive effort involving transit and high-occupancy vehicles. SANDAG Executive Director Gary Gallegos notes that the SCS calls for running10-minute headways on the trolley system and undergrounding the trolley in downtown San Diego to increase capacity. The SCS calls for a 250% increase in transit service miles and "hundreds of miles" of managed lanes (basically, toll lanes to manage congestion). This results are trend-bending � Gallegos noted that transit travel time from Otay Mesa to job centers near UC San Diego would be cut by two-thirds by 2050, so they are competitive with driving � but the amount of investment and behavioral change required is nothing short of mind-bending. Indeed, it's a big question as to how � and whether � California can make the level of investment in transit that's required to bend these trends sufficiently. There's been a lot of discussion recently about how California's budget crisis has compelled the state to cut back on transit funding at exactly the same time that the state is implementing SB 375. "Transit in California is on very shaky financial ground," Heminger said at the SCAG event. "The shortfall is $1 billion a year."  Local transit advocates around the state � especially in Los Angeles � have been calling for the state to give regions and localities more options to raise revenue for transit. But Senate Majority Leader Darrell Steinberg's recent proposal to give locals more taxing options generally is clearly going to run into the Republican anti-tax buzzsaw, so it's not clear whether those options will really be expanded. Maybe the most interesting conclusion you can draw from the early SCS work is that the whole land use/transit thing can only take you so far. The conventional wisdom over the past couple of years � promoted by me among others � is that you need land use change to reduce greenhouse gas emissions because technological solutions can't solve the problem all by themselves. This is clearly true. But it's also true that you can't hit the SCS targets without the transportation demand management and transportation system management components. Look at SANDAG's "hundreds of miles" of priced lanes and the Bay Area's general willingness to pay tolls, both of which manage demand. (I recently read a blog that said one of the ten ways you know you're from the Bay Area is that you think $7 is a reasonable price to pay to cross a bridge.) Perhaps the most dramatic illustration of this general trend is contained in the draft Gateway COG SCS prepared by Cambridge Systematic ( pdf ). Cambridge concluded that the Gateway cities � those along the 710 corridor, mostly � can cut per-capita GHG emissions by 4% by 2020 through transportation and transit efforts and another 3% through land use change. But there it stops. From 2020 and 2035 � at least according to this draft SCS � the only way to cut per-capita emissions further is to build a series of regional and statewide projects. Some of these are transit projects � High Speed Rail, the Green Line to LAX � but most of them are highway improvements, such as expanding I-5 in southern L.A. County and building an I-710 freight corridor. The bottom line is that the SCS process doesn't necessarily mean that land use change will fall out as the biggest factor in meeting the targets. This isn't an either/or thing � either land use change or roadway improvements. It's a both/and. We're going to have to do everything we can possibly think of and then some to get there. And then we've got to figure out where to get the money.

While the Legislature remains deadlocked on Gov. Jerry Brown's budget proposal, it seems that what does not kill redevelopment may in fact make it stronger. Many observers had written the obituary for the state's redevelopment system back in March when Brown was insisting that the state had to recoup redevelopment's tax increment in order to help plug its $24 billion deficit. A late proposal by the California Redevelopment Agency and League of California Cities seemed to go nowhere.  A flurry of activity this week suggests, however, that the fight to save redevelopment is very much alive. In particular,  the rallying cry has been to reform, and not eliminate, redevelopment. Recently introduced legislation attempts to do just that.  SB 286 - Wright SB 286 , sponsored by Senator Rod Wright (D-Los Angeles) has been amended to include CRA's package of redevelopment reform measures.  According to the CRA, the reform measures in SB 286 would add specificity to the types of information needed for making findings of blight; limit the percentage of total land area of a jurisdiction which may be included in project areas; exclude the schools share of property taxes in new project areas formed after January 1, 2012; prohibit uses of tax increment for specific purposes such as golf courses and never before developed parcels of land if 20 acres or more; add new requirements to five-year implementation plans and require agencies to focus activities on state priorities such as job creation, cleaning up contaminated property, basic infrastructure needs, and affordable housing; provide for more public oversight; require development of performance indicators to measure agency success; require performance audits of agencies by the State Auditor and provide funds for those reviews; and specifically prohibit the use of tax increment for non-redevelopment, non-agency operating costs. The bill was heard in the Senate Governance and Finance Committee on May 5 but no action was taken. The bill has not yet moved forward in part because some members want to wait until the governor releases his May revise, due out on May 14. That day is the deadline for bills to be approved by committee in their house of origin. However, there is speculation that SB 286 may be allowed to miss this deadline due to the heated debate surrounding redevelopment. CRA officials have said that SB 286, paired with SB 450, represents the most comprehensive reform of redevelopment in nearly two decades.   SB 286 Analysis by Senate Governance and Finance Committee SB 450 - Lowenthal In addition, and complementary, to the proposals in SB 286, Sen. Alan Lowenthal's (D-Long Beach) SB 450  addresses the use of redevelopment housing set-aside funds. SB 450 includes requirements to restrict the use of the Low- and Moderate-Income Housing Funds for planning and general administrative expenses. It also would provide funding for audits of redevelopment agency housing programs by the Department of Housing and Community Development, to allow the State Controller to conduct reviews of redevelopment agency audits and recommend suspension of auditors that are not conducting audits in accordance with the applicable standards and guidelines.   CRA believes that these and other reforms will help redevelopment agencies to more efficiently utilize their affordable housing funds, track their accomplishments over the long term, and keep the public better informed of the agencies' affordable housing programs and developments. SB 77 and AB 101 SB 77 and AB 101 are the budget bills that would eliminate redevelopment. Both are still technically alive in both houses. However, the Legislature appears to have reached an impasse and it is unclear whether either will come up for a vote.  CRA/League Alternative Proposal The CRA says that its proposal for agencies to voluntarily transfer funds has not yet been made into a bill because of the stall in budget talks. The CRA is waiting for the governor's revise to come out May 14, at which point budget talks may resume. The CRA says that its proposal does not depend on either SB 450 or SB 286.  The CRA recently held a videoconference discussing all of these pending measures. A recording of that conference can be viewed here .  Validating Acts At the same time that reform measures have been advanced, lawmakers in the Senate Local Government Committee have taken measures that the CRA and League say would inappropriately weaken redevelopment agencies. The Validating Acts are largely procedural, usually bipartisan bills that affirm the state's support for certain local actions, including bond issuances by retroactively fixing inadvertent errors. Generally three such bills come out each year; this year they are SB 191, SB 192, and SB 193.  While redevelopment has traditionally been covered by the validating acts, the current bill language excludes them. CRA and the League contend that this move represents an inappropriately partisan effort to support Gov. Brown's plan to eliminate redevelopment agencies.  When Senator Lois Wolk presented the validating acts last Wednesday in the Assembly Local Government Committee, Assembly Member Alejo asked for amendments to all three bills.  Mr. Alejo reportedly said that he was concerned about the actions taken by some redevelopment agencies in recent months in reaction to the Governor's proposal to end redevelopment agencies.  He worried that the validating acts might be used inappropriately to attempt to protect questionable asset transfers and interagency borrowing.   The CRA contends that this move was implemented at the behest of the Department of Finance following last week's Senate Government and Finance Committee hearing. It further contends that the exclusion represents retaliation against local governments that have attempted to shield those assets from a possible "fire sale" if and when agencies are liquidated.  These measures are due to be heard May 11 in the Assembly Local Government Committee.  --Josh Stephens

"Life in the Slow Lane" is the headline of a piece in The Economist that provides a very interesting analysis of the lack of infrastructure spending in the United States. Because the story is in The Economist , it comes at the topic from a European perspective. No doubt this will trouble conservatives because, well … I'm not sure why conservatives fear comparisons with other prosperous, industrialized, democratic societies. Anyway, I think the story is worth reading. The Economist looks primarily at transportation systems and makes the point that the U.S. is not only failing to build needed capacity, the country for decades has not adequately maintained the roads, railways and air transport systems it has. I don't see how there could be any argument on this point. Has a single study in the last 20 years concluded that we're doing a good job with transportation infrastructure? I think a similar point could be made about other critical systems – water, wastewater, schools, flood control. We continue to make due with a surprising amount of physical structures built during the Depression and the post-war era. Yet all we hear these days is that we can't afford new roads, levees and water lines, and we defer maintenance at every opportunity. The next federal transportation bill will likely be smaller than the previous one, which itself was inadequate. (Some commentators are already calling it dead on arrival .) Environmental Protection Agency programs that pay for clean water projects appear likely to suffer major budget reductions. In Sacramento, hardly anyone is even talking about this stuff – even though California's roadways are the most congested and in just about the poorest condition; even though some communities in the Central Valley lack safe drinking water ; even though we know that, sooner rather than later, a flood is going to wallop the Delta and put the two largest water delivery systems out of commission for an extended period. None of this stuff is new. The Economist says the U.S. can't figure out, or doesn't want to figure out, how to pay for basic transportation infrastructure. The bottom line is that we are unwilling to pay for the literal building blocks of the country. Why? Why can't we find agreement on something so obvious? We wring our hands and pound podiums about burdening our children and grandchildren with budgetary debt at the same time we ignore the infrastructure deficit – and its severe consequences – that we're forcing on those same generations. The Economist story concludes that, without substantial infrastructure investment, the American economy will grind to a halt. I think the grinding has already begun. Sorry, kids. – Paul Shigley

The unique geography of the San Francisco Bay ensures that there is only one Bay Area. Uniqueness and unity are not, however, the same thing, and planners are now working to convince the Bay Area ' s own residents and public officials that there is indeed One Bay Area. One Bay Area is the brand name under which the region ' s Sustainable Communities Strategy is being developed. It is a collaboration among the region ' s two major planning organizations  –  the Metropolitan Transportation Commission, which is the region ' s official Metropolitan Planning Organization, and the Association of Bay Area Governments  –  plus the San Francisco Bay Conservation and Development Commission, the Bay Area Air Quality Management District. The process also includes and from the region ' s nine counties and 101 cities. Building on generations of collaboration among these entities, the region ' s SCS, which is mandated by Senate Bill 375, will be called Plan Bay Area. In March, Plan Bay Area took its first step towards becoming reality with the release of the Initial Vision Scenario by MTC and ABAG. The IVS outlines expected population growth in the region and broadly identifies the locations where new residents and households can be located with the least impact on vehicle miles traveled and greenhouse gas emissions, pursuant to the goals of SB 375. " Frankly we are trying to get people to think as one, "  said Randy Rechtsler, director of legislation and public affairs at the MTC.  " We often use the phrase  ‘ Bay Area '  so why don ' t we get people focused on the place they live? " " Plan Bay Area is the brand that is being put on the concept of this SCS, "  said Jeff Hobson, deputy director of the transit advocacy group TransForm.  " That ' s all more of a communications issue than an issue of planning conflicts. " The IVS operates on the assumption that in the next 25 years the Bay Area will add 2 million people and 902, 000 housing units, for a 33 percent increase. The IVF projects that Plan Bay Area, when completed, will direct 97 percent of that growth to infill areas, leaving only 3 percent of household growth to greenfields. It also concentrates growth in the counties that are already most heavily urbanized. Santa Clara, Contra Costa, and Alameda counties will accommodate roughly two-thirds of that growth. Rechtsler said that the need for cities to conduct Regional Housing Needs Assessments will compel them to accept their allocated numbers. But that will not be nearly enough to make Plan Bay Area attractive to all the region ' s cities. " Since (SB 375) has no enforcement teeth in it and was much more the carrot as opposed to the stick approach, the question is, are there any carrots that are going to be available to create some sort of an incentive, "  said Jake Mackenzie, vice mayor of Rohnert Park and MTC commissioner. The plan relies to a great extent on Priority Development Areas (PDAs), to which the majority of new growth will be directed. PDAs will be sprinkled throughout the region ' s cities and, presumably, entail a range of incentives and supporting policies to facilitate development. To make PDAs worthwhile, planners say that the region will have to abandon its current formula of allocating infrastructure funds and instead start awarding them according to merit. In essence, cities that are willing to openly embrace their PDAs and attract development to them would receive a more generous share of public funds, leaving reluctant cities to fend for themselves. " It ' s clear that there are some cities that really are stepping up … those are the places that are going to need to get the lion ' s share of our dollars, "  said Stephanie Reyes policy director at the Greenbelt Alliance. The implementation of PDAs is just one issue that is likely to dominate regionwide discussions, which begin in earnest in May with a series of public workshops. Portraying the region ' s growth in such broad strokes, the IVF appears straightforward enough. It is, however, intended largely as a conversation piece around which countless discussions will revolve in the coming months and years. That ' s where Plan Bay Area and One Bay Area become public relations campaigns as much as they are planning documents. The challenge of getting literally millions of stakeholders on board is one that will face all four of the state ' s major urban regions as they all develop their own Sustainable Communities Strategies. " But when it comes back to the county and to the local level, I still don ' t think that we ' ve properly captured the attention of our colleagues, and we certainly haven ' t captured the public ' s attention, "  said Mackenzie. Bay Area planners say that the buy-in necessary for the plan ' s success might come more easily in the Bay Area than it will in the state ' s other three, less geographically distinctive regions. As diverse as the nine counties are  –  from vineyard-laced Napa to the city-county of San Francisco  –  the planners behind Plan Bay Area are hoping to capitalize on the nine counties '  physical and psychological connections to the bay. " The Bay Area also rallied around other things too, building of bridges and building of BART, "  said Rentschler.  " All this groundwork has been laid for us and asking people in the Bay Area to live in a more dense setting is actually asking someone to take advantage of these great assets that we already have here. " This mentality, planners say, has produced a rich tradition of regional planning that might not link, for instance, Redlands to Santa Monica or Oceanside to Poway in quite the same way. " I think we have a chance better than others because we have the Bay to rally around, "  said Rentschler.  " That ' s a great asset to have. " If Bay Area stakeholders are to disagree, a host of opportunities for dissention await. Though SB 375 seeks the reduction of greenhouse gas emissions, many insist that it should also lead to  –  or at least not impede  –  economic growth. Scott Zengel, vice president at the business group Bay Area Council, said that, as currently articulated, the IVS fails to draw a necessary connection between population growth, housing locations, and jobs. " Generally what we see as missing from the process — and this goes from performance targets to the Initial Vision Scenario — is in-depth economics and jobs indicators and analysis and scenario-running, "  said Zengel .  " Jobs are an input for the model. From our perspective, it ' s a bit backwards from how it ' s supposed to be. " Planners argue, however, that job-creation simply is not a part of the planning process. In fact, they say that the plan will naturally improve the region ' s economic fortunes and that any attempt to guide job growth would be far-fetched at best and inappropriate at worst. " We're not doing an activist (population) projection, "  said Rentschler.  " On the other hand, we're doing an activist projection on where we want people to reside. That is true. " Some cities, especially small ones, may not take kindly to an effort that implicitly links them with the region ' s major centers, no matter how light a city's burden may be. " Some small cities that have a RHNA number that ' s less than double-digits will somehow hit the roof that this is just unfair, "  said Rentschler.  " For some folks that just want to be left alone, I don ' t think they ' re going to be so enamored of this process. " Others worry that places appropriate for residential growth today may not be appropriate in 25 years. In fact, by then some places might not even be places anymore. That ' s because the inexorable emergence of climate change and especially sea-level rise could make some low-lying parts of the Bay Area uninhabitable. In fact, a great deal of the developed land ringing the bay is landfill, built up scarcely higher than the current sea level. Plan Bay Area must, they say, account for adaptation as well as mitigation. " We ' re going to have to deal with the impacts of the emissions that are already in the atmosphere, "  said Will Travis, executive director of the Bay Conservation and Development Commission.  " We need to be doing two things at once: Trying to avoid the unmanageable by reducing greenhouse gases and manage the unavoidable by adapting to the impacts of climate change. " Travis said that some of the area ' s most prominent areas are threatened, including downtown San Francisco. Meanwhile, Reyes of the Greenbelt Alliance said that she was concerned about the 3% of household growth that is projected for greenfields and not infill locations. The crucial piece that the IVF intentionally does not yet account for is the transportation connections that will, planners hope, enable new and existing residents to get around and among these new population nodes without despoiling the atmosphere as much as residents currently do. " We hope the final plan will do more to affect land use patterns, and we just haven ' t started to change the transportation investment and policies, "  said Hobson.  " We have to know what those distributions are like so that we plan for the transportation scenarios to match up with those. " Contacts & Resources One Bay Area www.onebayarea.org Jeff Hobson, Deputy Director ,  TransForm, (510) 740.3150 Jake Mackenzie, Vice Mayor, City of Rohnert Park, (707) 588-2226 Stephanie Reyes ,  Policy Director ,  Greenbelt Alliance, (415) 543-6771 Randy Rentschler, Director  of  Legislation and Public Affairs ,  Metropolitan Transportation Commission/ Bay Area Toll Authority, ( 510) 817-5700 Will Travis, Executive Director, San Francisco Bay Conservation and Development Commission,  (415) 352-3600 Scott Zengel ,  Vice President, Bay Area Family of Funds ,  Bay Area Council, (415) 946-8716

Thanks to the recession and various iterations of the dot-com boom and bust, Silicon Valley has a large, stagnant pool of empty office and light industrial space. The same region is woefully underbuilt with housing. Unsurprisingly, homebuilders are making inroads into the underused office parks and industrial sites in Santa Clara County. One result of this trend could be described as a new form of land banking. Produce growers and dairy farmers have traditionally relied on home builders to help them cash out on the value of their land holdings. When the developers come knocking, the farmers take the money and set up business anew in the next valley. Now it appears that high-tech businesses that established offices on prime real estate years ago are learning comparable skills in the art of land-banking, by selling off surplus acreage--or even their entire campuses--for a "higher and better" use. In the city of Santa Clara, Danville-based Trumark Homes says it plans to tear down 141,000 square feet of office/R&D space on an eight-acre parcel in the city of Santa Clara, replacing it with residential units. The site was formerly owned by Extreme Networks, an Ethernet network company, which continues to operate on a neighboring eight-acre campus. Trumark plans to build 112 townhouses and 42 single-family homes on the former high-tech/light-industrial site, which is located near Caltrain's Lawrence Expressway station and an existing residential neighborhood. Extreme Networks, meanwhile, will reportedly continue to operate in a contiguous eight-acre parcel, although the company has allowed the homebuilder to rezone the entire Ethernet property for residential development, according to Trumark v.p.Arden Hearing. Earlier this year, Santa Clara City Council unanimously approved the change to the city's general plan, allowing the housing to go forward on land formerly zoned for office and light-industrial uses. Resmark Equity Partners, a Los Angeles-based residential investment advisor, is a financial partner in the project. Trumark is notable among local developers for targeting infill home building opportunities in Silicon Valley, where the value of commercially zoned land has slumped. Several of the projects are located near existing commuter-rail corridors, allowing the developer to tout the projects as "transit oriented."  An analogous project is a homebuilder's plan to build 89 single-family (i.e. detached) homes in South San Jose's Almaden Valley district on what had been a 16-acre industrial park. The homebuilder says it plans to demolish a 123,000-square-foot office building and a 55,000-square-foot industrial structure currently on the site.  Trumark has similar plans to build on industrial or commercial land in San Jose, where it plans to build 96 townhomes in the city's Berryessa district. Known as North Capitol Villas, the San Jose project is within walking distance of the Santa Clara Valley Transportation Authority (VTA) light rail, as well as an existing elementary school. The same homebuilder is reportedly buying 300 acres in Sunnyland.  --Morris Newman

A State Lands Commission policy prohibiting development seaward of the most landward historical position of the mean high tide line was an invalid underground regulation because it was not promulgated as a regulation pursuant to the Administrative Procedures Act, the Third District Court of Appeal has ruled. Contrary to the commission's contention, its policy was not exempt from promulgation under the Administrative Procedures Act (APA) because it did not fit within the "only legally tenable interpretation of a provision of law" exemption. In fact, the court held that the policy was not the only tenable interpretation because the regulation did not account for fluctuations in high tide that fall outside of the historical range. Establishment of the mean high tide line is crucial to beachfront property owners, because the state owns all lands between the low-water mark and the ordinary high-water mark. Those are tidelands that the State Lands Commission holds in trust for the public. The commission's policy, wrote Justice George Nicholson, "is potentially both overinclusive, prohibiting development on land that does not now and may never belong to the state, and underinclusive, failing to prohibit development on land that may become state land in the future." The decision could have implications for coastal development and for public beach access, but it appears unlikely that the ruling will result in a substantial loosening of development regulations.  The court's decision came in a case brought by Thomas and Nancy Bollay. They own a beachfront parcel in unincorporated Santa Barbara County near Carpinteria. Their parcel extends landward from the mean high tide line to rocks that protect a railroad right-of-way on the landward side of the parcel. The Bollays in 1999 filed an application with the county for permission to build a single-family residence on the parcel. The county in turn contacted the commission regarding whether the proposed project would encroach on state tidelands. The commission responded that the proposed project could encroach on state tidelands and, thus, objected to the project. In 2003, the Bollays submitted a survey to the commission. The survey identified the location of the mean high tide line, which is also called the ordinary high-water mark, and the Bollays attempted to show that their house would not encroach on this mark. This mark is determined by averaging the height of the high tides over approximately 19 years. The commission rejected the survey on the grounds the mean high tide had changed over the years, and cited surveys conducted in 1956 and 1964 as evidence that the entire beach seaward of the railroad right-of-way was seaward of the mean high tide line. In 2004, the county commenced an investigation into whether it should condemn the Bollays' parcel and seven others along the beach for public purposes. For the county to proceed, the State Lands Commission would have to establish the mean high tide line on the beach. However, the commission did not determine the existing mean high tide line. Instead, the commission issued a report that referred only to the 1964 survey, and which concluded that "it seems unlikely that any of the parcels could be developed in a manner that complied with Coastal Act policies or that conformed to the State Lands Commission's policy that new development be sited landward of the most landward location of the mean high tide line." (The italicized language is the policy that the Bollays challenged as an underground regulation.) The Bollays first challenged the policy before the Office of Administrative Law (OAL). The OAL determined the policy was a regulation, but did not agree with the Bollays that the regulation was illegal. The OAL determined the policy was exempt from the APA rules requiring a certain process for promulgation of regulations because, the OAL concluded, the policy was the only legally tenable interpretation of the law governing the commission's activities. The Bollays then sued in Sacramento County Superior Court, where Judge Lloyd Connelly considered only the question of whether the exemption to the promulgation rules applied. He upheld the OAL's determination that the exemption applied. The Bollays appealed. The unanimous three-judge panel of the Third District agreed with the commission that the policy constituted a regulation. However, the appellate court reversed both the commission's determination and the trial court's ruling as to whether an exemption to the promulgation rules applied.  "Simply put, the Lands Commission's policy is not the only legally tenable interpretation of law because it potentially ‘protects' the public's interest in land that does not now and may never in the future belong to the state," Justice Nicholson wrote. "Furthermore, the current policy is potentially underinclusive as well because the mean high tide line could move further landward than it has ever been. Thus, a policy that ‘protects' only land that is seaward of the most landward historical mean high tide line does not preserve the public's interest in land that may foreseeably become state tidelands." Thus, the court ruled the Bollays were entitled to the relief sought – a judicial declaration that the commission's policy was invalid because it was not promulgated in accordance with the Administrative Procedures Act.  The Case: Bollay v. California Office of Administrative Law, No. C063268, 193 Cal. App. 4th 103, 2011 Cal. App. LEXIS 225, 2011 DJDAR 3253. Filed March 1, 2011.  The Lawyers:  For Bollay: Bruce S. Flushman and Wendy L. Manley, Wendel, Rosen, Black & Dean, (510) 834-6600. For the state: Christiana Tiedemann and Alice Busching Reynolds, attorney general's office, (510) 622-2100.

Correction Appended While the mission of the National Park System is to preserve natural wonders for the enjoyment of all Americans, a Native American tribe in Northern California is asking to keep a piece of Redwoods National Park for its own purposes.  One of the state's most populous Native American tribes, the Yurok, has recently issued a proposal that would include a transfer of land in Redwood National Park to management by the tribe. The tribe hopes to build a tribal park system that would encompass the Redwood National Park land and several nearby land purchases.  Though rare, transfers of land from the National Park Service and native tribes have taken place at least a half-dozen times in the past 35 years. In California, 314 acres of Death Valley National Park went to the Timbisha Shoshone Tribe in 2000.  The tribe, which has set land acquisition as a centerpiece of the tribal political agenda, is seeking control of the land so that it can generate revenue and exercise sovereign rights over its ancestral territory. The problem, opponents say, is the precedent the land transfer would set for the national park system.  The tribe has drafted federal legislation that would allow the transfer of nearly 1,200 acres of Redwood National Park land in Del Norte County to the tribe's management. The tribe would package the Redwood National Park land together with 1,200 acres of Six Rivers National Forest land; Redding Rock, an offshore landmark currently under management by the Bureau of Land Management as part of the California Coastal National Monument; and some 50,000 acres currently owned by Green Diamond Resource Company. The other purchases are not a part of the draft legislation that would transfer the national park land to the tribe. Tribal Chairman Troy Fletcher maintains that the tribe will continue to allow full public access to the Redwood National Park parcel under a co-management agreement that meets the standards of the National Park Service.  "We would call the land a tribal park, but it would remain within the boundaries of Redwood National Park, and we would manage it in a way compatible with the Redwood General Management Plan," said Fletcher.  Although the land would be transferred to the tribe, Fletcher said that it would be held in trust by the United States. The tribe, however, would create its own management plan and take over management from the National Park service. Fletcher said that the planning process would take place "in a transparent, open process, allowing public comment about the management of the park land." Opponents of the proposal, however, have already perceived a lack of transparency in the tribe's planning process for the Redwood National Park parcel. Public Employees for Environmental Responsibility (PEER), a national alliance of public employees that monitor environmental laws and standards, recently released an email from Destry Jarvis, a lobbyist employed by the tribe, addressed to the National Park Service (NPS). PEER believes that the emails exhibit back room dealing and a conflict of interest, in part because Destry Jarvis is the brother of NPS Director Jonathan Jarvis. Jeff Ruch, executive director of PEER, also worries that the transfer of public lands proposed by the tribe would open the door for similar transfers around the state and the country, risking the protection of public lands and fragile ecosystems.  According to Ruch, an earlier draft of legislation proposing the transfer "was a major gift of public lands and resources for nothing in return. If you adopted a similar kind of approach to other national parks land where tribes had historic and cultural connections, you would dismantle the entire national parks, forests, and refuges systems." Several tribes around the country have entered similar co-management arrangements for former tribal areas with the federal government , the most prominent example in California being the Timbisha Tribe in Death Valley National Park. Ruch, however, argues that the Yurok Tribe's plans require a change of laws that govern National Park land.  The Yurok claim to understand the concerns of opponents, holding public meetings and charrettes with environmental groups and other NGOs. Tribal Chairman Fletcher suggested that the public process has improved the tribe's proposal: "People feel passionately and strongly about park land, so that issue has dominated much of the dialogue that we have had through these meetings. By identifying their interest, they have given the Yurok Tribe information about how we should draft any potential legislation." Just as important as the precedent the actions of the tribe will set for the future, are the past precedents the tribe means to overcome.  According to Thomas Gates, an anthropologist who is a former consultant for the tribe, episodes of displacement and disenfranchisement mark the Yurok Tribe's recent history, contributing to the cause and timing for the tribe's proposal. From the 1860s until the Hoopa-Yurok Settlement Act of 1988, the tribe was forced to occupy the nearby Hoopa reservation. The Yurok narrowly missed gaining the national park land currently in question as part of the Hoopa-Yurok Settlement Act, which drew the current boundaries of the Yurok Reservation but dropped the Redwood National Park land before Congressional approval.  Moreover, the tribe has little control over most of the land that was set aside for their reservation.  According to Gates, the Yurok Reservation totals about 57,000 acres, but the tribe only owns about 15 percent of that 57,000 acres either as fee lands (which means the tribe pays taxes on the lands to the state) or land held in trust on behalf of the Yurok Tribe by the United States government. A timber company, Green Diamond Resource Company, owns 65 percent of the remaining land on the reservation. Therefore, the tribe's land acquisition plans have potential as a sustainable economic driver for the tribe.  "The Yuroks had upwards of 60 percent unemployment prior to the economic downturn," said Gates. "Here is one of the biggest employers in the region, and the Yurok want more employment in the park." Not all groups interested in preserving national park land have spoken out to oppose the proposal. Ron Tipton, the executive director of the National Parks Conservation Association, cites the Yurok Tribe's good record of conservation, leading efforts to restore condor and salmon habitat in the North State. Tipton makes it clear, however, that before his organization will take a stand on the proposal, he wants to see the details of the co-management arrangement between the National Park Service and the tribe.   "We want to know exactly to what standards they intend to manage and what ability the National Park Service will have to be a partner in assuring that the tribal park concept articulated by the legislation is adhered to for the long term," said Tipton.  Tipton acknowledges that past examples of land transfers like this have had mixed results. But he believes that the good standing of the Yurok Tribe in the conservation community indicates that tribe has conservation-minded intentions for the national park land and can provide competent and conscientious management. Jarvis is unequivocal about the intentions of the tribe.  "The National Park land would not change in any way, except possibly for the better, if transferred to the tribe. The tribe would have much more concentrated interest in the condition and quality of the land and the visitor experience there than the National Park Service does," adding that "The tribe does not plan to cut any trees, and they are willing to specify in the language of the legislation." The Yurok Tribe does not currently have a timetable for the draft legislation to appear before Congress, but the tribe is continuing to hold public meetings in the North State and with members of Congress in Washington D.C. A tribal representative informed CP&DR that the draft legislation proposing the land transfer will soon appear on the tribe's website.  Rep. Mike Thompson, a Democrat from California's First Congressional District, which includes the Yurok Reservation, must introduce the draft legislation to Congress before the land transfer has a chance to become reality.  In a statement about the project, Thompson said, "The Yurok tribe has been great to work with but there remains more work to do before any legislation will be ready to be introduced." Contacts Matt Mais, Yurok Tribe Public Relations Manager, (707) 482-1350 Jeff Ruch, Executive Director, Public Employees for Environmental Responsibility , (202) 265-7337 Thomas Gates, Cultural Resources Program Manager, North State Resources, (916) 956-9048;  Ron Tipton, Senior Vice President of Policy, National Parks Conservation Association, (202) 223-6722 T. Destry Jarvis, President, Outdoor Recreation & Park Service, (540) 338-6970 Editor's Note: A previous version of this story described the land transfer as "unprecedented." This estimation was erroneous and based on incomplete information. CP&DR regrets the error.