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.

In Triumph of the City, Ed Glaeser has written a love letter to his lifelong object of study, the global metropoles in which a majority of the world's population now resides. When planned and managed well, cities exemplify the best of civilization. The subtitle of the book, "How Our Greatest Invention Makes Us Richer, Smarter, Greener, Healthier, and Happier," sounds a bit like the sales pitch in an infomercial, but Glaeser's enthusiasm for cities is sincere and infectious. To be precise, the title of the book refers to the triumph of the city, as opposed to all cities or any city in particular. Industrial cities in America, for example, are dead, and this book does not argue for their revival. Whereas some might argue that the ability to conduct many forms of business from virtually anywhere made possible by modern communications have rendered the modern city less relevant, Glaeser maintains that the riches to be gained from agglomeration in the postindustrial urban economy have only begun to be mined. In fact, his is a deeply humanist book, with the "triumph" referring to the heights of invention and creativity achieved when people cluster together. Glaeser conceives of cities first and foremost as consisting of people and connections, and secondarily of places and buildings. Predictable though the comparison may be, it's true nonetheless: Glaeser is Jane Jacobs with a pocket square and, importantly, a spreadsheet. Triumph of the City adds crucial data and analysis to the story that Jacobs first told decades ago, when Glaeser himself was likely toddling about the parks and sidewalks of his native Manhattan. The Jacobs book that he most embraces is not Death and Life of Great American Cities but rather her lesser known but equally compelling Economy of Cities. Glaeser draws on anecdotes of urban success and failure from Manhattan to Mumbai. But it is the abundance of statistical comparisons in Triumph of the City that serve as the real basis for understanding trends and correlations among variables – such as density, education, wealth, and even climate – that one might not normally associate with one another but that, he claims, bear heavily on a city's wealth and success. Consider, for example, the following: •In the average U.S. county with less than one person per acre, 15.8 percent of adults have college degrees. In the average county with more than two people per acre, 30.6 percent of adults have college degrees. •Second only to January temperature, education is the most reliable predictor of urban growth, especially among older cities. •One of his most counterintuitive observations comes early on, in the context of a lengthy discussion about housing values, incomes, and transit accessibility: •When American cities have built new rapid-transit stops over the last thirty years, poverty rates have generally increased near those stops. This doesn't mean, however, that mass transit was making people poor. Rather, poor people value being able to get around without a car and move near the stops. Whether the increase in poverty rates around new rapid transit stops is a temporary phase in the evolution of urban neighborhoods en route to full-scale gentrification, Glaeser does not say. If true, however, this observation upends one of the long-held assumptions in the planning profession about greater accessibility and increased property values—that one will automatically and instantly lead to the other. Perhaps even more surprising is Glaeser's invective against the modern environmental movement. Under the guise of "preservation," environmentalists have imposed strict controls on development in coastal regions that are inherently green by virtue of their mild year-round climate. High median home prices in places such as Santa Clara County are not the inevitable outcome of market forces, but instead reflect a long-term disruption in new supply. Regulatory barriers, which empower opponents of new development, have in effect shunted population growth to areas of the country with extreme weather, such as Phoenix, Las Vegas, and Houston, where the need for heating or air conditioning virtually guarantees a higher per-capita energy consumption. If the environmentalists in California were truly green, they would embrace more development in their own neighborhoods. Glaeser saves special scorn for the California Environmental Quality Act (CEQA), pointing out that it is prejudicial against new development, since it only considers the impacts of a given project against a "no-build" alternative. This is unrealistic, Glaeser points out, because new growth pressures demand a release valve; if denied in one place, development will ultimately pop up elsewhere in a more receptive city or region. Because the natural tendency for people is to agglomerate, any policy that discourages agglomeration under the guise of "preservation" is necessarily self-defeating and an inducement to even further destruction of the environment via greenfield development. For urban infill projects, CEQA's point of reference for assessing greenhouse gas impacts, for example, should therefore be not a "no-build" alternative, but an alternate scenario in which the same project is built in a car-dependent, less temperate environment. Such a scenario would be equally hypothetical—yet more reflective of the real world writ large. Paris offers a cautionary tale of preservationism taken to an extreme, with the city's official building height limits making the center city unaffordable to all except the wealthy. Even the French have begun to debate whether Paris is a "ville-musée," or city-museum, prized for its Hausmannian architecture and cultural pleasures but lacking in dynamism or innovation. The fixation on historic preservation attracts millions of tourists each year while stymieing the city's ability to accommodate substantial new and permanent growth. As Glaeser writes, "cities aren't structures; cities are people." For Glaeser, the ability of urban centers to grow "up" and increase densities over time is a key driver of the agglomeration economy, whereby the physical proximity of people to one another allows for the dissemination of new ideas, discovery of individual talents, creation of new industries, capital formation and wealth, which in turn supports the cultural amenities that define "quality of life." These amenities draw even more people, particularly the wealthy, creating a virtuous circle of growth and prosperity.* It's worth noting that the one "amenity" that Glaeser values above all others is education. That's why many of Glaeser's observations owe an intellectual debt to the seminal work of Jane Jacobs – but only partially. Jacobs' bid to preserve Washington Square Park and her beloved Greenwich Village from Moses' wrecking ball was ultimately successful, but in the long term, Glaeser also sees the current unaffordability of this area as a distinct part of Jacobs' legacy. Once a working-class neighborhood, Greenwich Village now boasts some of the most expensive real estate in the country. As Glaeser tells the narrative, its transformation into a wealthy enclave is directly tied to the low-/mid-rise architecture of its townhouses and tenements. Without adequate new supply, prices inevitably go up. This may be part of the story, but Glaeser unfairly criticizes Jacobs for supposedly misunderstanding the long-term economic effect of her own preservationist stance. In fact, Jacobs did not oppose the gradual replacement of older buildings with newer ones; she simply favored retaining some older buildings as part of a neighborhood's real estate inventory because their more affordable rents provide incubator space for small businesses and entrepreneurs. Jacobs' fondness for old buildings is supported by a rationale far more nuanced than the mentality of civic leaders in Paris, many of whom oppose even the slightest alteration to the scale and aesthetic of the historic urban core. Toward the end of the book, the personal stakes of Glaeser's interest in the issue of affordability become clearer as he grapples with his own ambivalence as an urban economist who has decamped to the suburbs in search of cheaper housing and better schools than the nearby cities of Boston or Cambridge can provide. Instead of disparaging McMansionites, urban planners should understand that, for most middle-income families, the allure of suburbia is grounded in rational economic decisions. Compared to urban living, it simply offers more bang for the buck. On the subject of amenities, Glaeser is somewhere along the continuum between Richard Florida and Joel Kotkin. Cities should not tailor their policies to the so-called "creative class," nor should they ignore the important role of amenities in attracting and retaining talent. In fact, if a city has a high median income relative to local housing prices, it indicates that additional pay is needed to draw qualified labor. This is a sign of urban failure rather than success. In cities with a high quality of life, workers will by contrast accept lower salaries because the desirability of the location is itself a form of compensation. To level the playing field and make cities more competitive, Glaeser's policy prescriptions are an amalgam of both left and right: streamline the existing environmental review process with a flat mitigation fee on new development; eliminate city income taxes; impose congestion charging fees on urban drivers as is done in Singapore and London; end the quasi-monopoly of the public school system through vouchers. Ultimately, many of Glaeser's policy prescriptions hew towards the free market. And why shouldn't they? Glaeser argues convincingly that over 4,000 years cities – or, rather, the people who constitute their life force – have performed best when they welcome new arrivals and embrace transformation, rather than regulating new growth out of existence or clinging to failed policies of the past. And that's what makes Glaeser's contribution to the discourse on cities so valuable. He takes great pains not to come off as a heartless free-market economist, instead celebrating the artistry, poetry, humanity and, yes, freedom that constitute the true triumph of the city. --Adam Christian

An appellate court has upheld the City of Berkeley's application of the density bonus law and the California Environmental Quality Act exemption for an infill project. The decision means that a 98-unit, mixed-use affordable housing or senior affordable housing project (depending on which the developer chooses) in Berkeley can move forward. The case illustrates the broad reach of the density bonus law for projects that fit within its requirements. Combined with the earlier ruling in Friends of Lagoon Valley v. City of Vacaville, (2007) 154 Cal.App.4th 807 (see CP&DR Legal Digest, October 2007 ), the case also demonstrates the reluctance of the courts to narrowly interpret the provisions of the density bonus statute. The ruling is also the first published decision upholding a city's use of the Class 32 categorical exemption from the California Environmental Quality Act (CEQA) for an urban infill project.   In 2007, the developer (RB Tech Center, Memar Properties, CityCentric Investments and Ashby Arts Associates) approached the city with two alternatives for a 0.79-acre site at San Pablo and Ashby avenues: a mixed-use affordable housing project or a senior affordable housing project. Both projects would have retail on the ground floor and 98 units of housing on the five floors above. The city reviewed both projects and determined that the developer was entitled to certain density bonuses for either project. Also, the city determined that both projects were exempt from environmental review under the Class 32 categorical infill exemption (14 Cal. Code of Regulations § 15332).  Ultimately, the city's zoning adjustments board approved a use permit allowing the developer to build either project. Berkeley resident Stephen Wollmer appealed, but the Berkeley City Council denied the appeal last year. Wollmer sued, and Alameda County Superior Court Judge Frank Roesch found in favor of the city. Wollmer appealed. In its decision, the First District Court of Appeal began by addressing the application of the density bonus law to the developer's projects. Wollmer raised three novel arguments: "(1) condition 68 of the use permit allowed the developers to receive Section 8 subsidies for density-bonus-qualifying units, thereby exceeding the maximum ‘affordable rent' established in Health and Safety Code § 50053; (2) the city's approval of amenities should not have been considered when deciding what standards should be waived to accommodate the project; and (3) the city improperly calculated the project's density bonus." The appellate court found for the city on all issues. Section 8 Subsidies and the Density Bonus Law The crux of the project opponent's first argument was that the total amount of rent that the developer would receive from very low-income tenants qualifying for Section 8 subsidies would exceed "affordable rent," and, therefore, the project could not qualify for a density bonus.  Government Code § 65915 requires that " ents for the lower income density bonus units shall be set at an affordable rent as defined in § 50053 of the Health and Safety Code." Section 8 subsidies are provided by the federal government to cover the difference between the fair market rental value of a property and the amount that very low-income tenants can afford. Landlords who enter into Section 8 agreements receive one check from the tenant and the balance from the government.  In this case, one of the conditions of approval for the projects (condition 68) allows the rent received under Section 8 as the maximum allowable rent for the very low-income rental units. In addition to setting the cap for very low-income residents at the level permitted under Section 8, the city also granted the developer the very low-income density bonus. Wollmer argued that because Section 8 results in the developer/landlord receiving the fair market rental value, albeit not from the tenant, the rent would exceed "affordable rent" as defined in Health and Safety Code § 50053. The court disagreed. The court found that the Health and Safety Code § 50098 defined rent as "the charges paid by the persons and families of low or moderate income for occupancy in a housing development." The Health and Safety Code regulations also specifically state that "affordable rent" includes "rent charged as a tenant contribution under the provisions of Section 8" (25 Cal. Code of Regulations § 6922, subdivision (d)). Therefore, according to the court, rent received under Section 8 qualifies as affordable rent. The relevant inquiry is what the tenant pays, not what the landlord receives in total from the tenant and other sources. In light of the statutes and regulations, the court held that the city lawfully granted a density bonus for very low-income units that allowed receipt of rent under the Section 8 program. Amenities in its Density Bonus Determination In addition to requiring density bonuses, Government Code § 65915 requires that the local agency grant waivers or reductions from development standards that would otherwise preclude the construction of a project that meets the density bonus statute criteria. In this case, the city granted waivers of height and setback requirements in order to accommodate the development envisioned by developer, which included amenities such as a courtyard and higher ceilings. Petitioners argued that these amenities should not have been included as part of the "development" in order to obtain the waiver of development standards. According to the appellate court, the narrow interpretation urged by Wollmer was incorrect and went against the spirit of the density bonus law. The city properly included the amenities as part of the development in waiving some of its development standards.  "Had the city failed to grant the waiver and variances, such action would have had ‘the effect of physically precluding the construction of a development' meeting the criteria of the density bonus law," Justice Timothy Reardon wrote for the unanimous three-judge appellate panel.  Calculation of the Project's Density Bonus  In calculating density bonuses, the local agency uses the density allowed under the zoning code, unless the zoning code is inconsistent with the general plan, in which case the maximum general plan density is used. In this case, the city used the zoning code to establish the density baseline. The opponent asserted that Berkeley's zoning code is inconsistent with the general plan, and, thus, the city should have used the general plan (which has a lower density). However, the court pointed out that the general plan specifically states that the zoning code is consistent and that the more specific provisions in the zoning code govern. Therefore, the court held that the city properly calculated the density bonus. Infill Exemption After upholding the city's application of the density bonus law, the court addressed the opponent's CEQA argument. This also involved a novel argument concerning the interplay between the density bonus law and the CEQA infill exemption. Wollmer contended that the infill exemption did not apply because the city waived some of the development standards, resulting in a project that is inconsistent with the general plan and zoning code. The infill exemption requires consistency. As Wollmer noted, without the waivers or reductions granted under the density bonus law, a variance would have been required for the project and the infill exemption would not have applied. For purposes of this argument, the relevant portion of the CEQA Guidelines say: "The project is consistent with the applicable general plan designations and policies and all applicable zoning designations and regulations." The court reasoned that the development standards waived under the density bonus law were not applicable to the project for two reasons: 1) the density bonus law authorized the waiver, and 2) the city's code requires the city to grant density bonuses upon a proper application. Therefore, the court held that environmental review under CEQA was not required because the infill exemption applied. The Case: Wollmer v. City of Berkeley, No. A128121, 2011 DJDAR 4658. Filed March 11, 2011. Ordered published March 30, 2011. The Lawyers: For Wollmer: Stephen Wollmer in pro. per. For the city: Laura McKinney, city attorney's office, (510) 981-6998. For the developers: Andrew Sabey,  Cox, Castle & Nicholson, (415) 392-4200.

The City of Tulare has officially given up on a proposed speedway. The premature checkered flag for the Tulare Motor Sports Complex is hardly a surprise. On the surface, auto racing tracks seem like a sexy way to generate big economic returns. Cities such as Indianapolis, Charlotte and Daytona Beach owe a good portion of their existence to auto racing. But these places are the exception, as numerous other cities have learned over the last decade. When the popularity of NASCAR reached unprecedented heights during the 1990s and early '00s, a lot people thought stock car racing was going to make them rich. As the stock car organization pushed its way into the number-two slot in TV sports ratings, behind only the NFL, race track development gained speed. New tracks were built and many more were proposed as developers and local governments produced studies that said a new track could generate hundreds of millions of dollars in annual economic activity. What so many people seemed to ignore were the sport's limitations. NASCAR's top three touring series race only about 35 times apiece, much of the racing season schedule is carved in stone, and only the top series – the Sprint Cup – is a guaranteed money-maker at the front gate. Speedways can stay active between major NASCAR races with minor league races, driving schools and concerts, but it's important to recognize that a speedway is not like a major league baseball stadium that is guaranteed 81 games a year, an NBA arena that gets 41 games annually or even an NFL stadium that hosts 10 games a year. If you're lucky, you might get Dale Earnhardt Jr., Jimmie Johnson, Jeff Gordon and Danica Patrick at your new race track one weekend a year. At least two major speedways built during the 1990s with NASCAR in mind have already closed, in St. Louis and Memphis. Racing ended after a few years at new tracks in Orlando and Colorado Springs, which now serve only as test and school facilities. A new Nashville track – where NASCAR's second- and third-most-popular series raced before mostly empty grandstands last weekend – is owned by the same company that built and shuttered the St. Louis and Memphis tracks. As we have reported in the past, California has seen apparently serious speedway proposals come and go in Yuba County, Madera County, Merced County and the Coachella Valley. All of those plans died since California's last major new track opened in Fontana nearly 15 years ago. Still, Tulare would seem like a good place for a major speedway. Nearly 2 million people live within an hour's drive, auto racing has deep roots in the San Joaquin Valley, the fairgrounds at Tulare already has a successful dirt track, and Tulare and neighboring Visalia have a substantial hospitality industry that helps serve the giant International Agri-Center in Tulare. The proposal from developer Bud Long called for a one-mile oval track, a quarter-mile drag strip, go-kart tracks, a convention center, a hotel and, naturally, a shopping center. However, the project appeared troubled from the outset. NASCAR indicated no interest in the proposed track. Long was unable to lock up all of the land needed and never produced evidence he had the necessary capital. Environmentalists and neighboring property owners hated the idea. The City Council was sharply divided before and after it approved the project in December 2008. The city ended up fronting $1 million for the environmental impact report. The city never got paid back, which apparently cost the city attorney his job and may have contributed to the surprise retirement of the longtime city manager. Early this year, a Tulare County judge invalidated the EIR. Rather than appeal, the City Council – which now has a majority opposed to the track – overturned all project entitlements on April 19. The entire episode mirrored the painful experience of Merced County only three years earlier regarding the proposed Riverside Motorsports Park. Development of new speedways, like development of just about everything else, has ceased. It's time to start the economic development engines in more mundane – and reliable – ways.  – Paul Shigley

Cambridge, Mass. -- Imagine you're a former Treasury secretary, or, a former Interior secretary, or a former governor with national influence and you've been tasked to discuss land use on a springtime Friday in 2011. What in the world do you talk about? You can't talk about development per se, because there isn't much of any. And you can't talk about particular cities because you're a former federal official who takes a broad view of the state of affairs. And you probably want to say something positive.  This unenviable dilemma faced Lawrence Summers and Bruce Babbitt -- both of President Bill Clinton's cabinet -- and former Philadelphia Mayor and Pennsylvania Governor Ed Rendell at different sessions this weekend at the Forum on Land Use and the Built Environment, sponsored by the Lincoln Institute of Land Policy , the Harvard Graduate School of Design , and the Neiman Foundation for Journalism at Harvard University. With a nod to the idea that the U.S. has entered a new era of urbanism, the forum's theme was "The Next City."  The purpose of the forum is to assemble a slate of A-list speakers to help us land-use journalists put our finger on the pulse of land-use trends. That's a fraught metaphor, of course, at a time when real estate development hardly has a pulse at all. Instead, this year we found ourselves putting an ear to the rail. The high-speed rail.  The forum's organizers did not assign themes or topics to its speakers. So it's a small wonder that almost every speaker -- including the three most prominent politicos of the bunch -- chose to discuss infrastructure and, among all infrastructure projects, high-speed rail grabbed the most attention. It is one of the few optimistic elements of the urban zeitgeist, and one of the few elements that are tangible enough to discuss.  Summers led off the conference with a brief assessment of the causes of this past decade's economic disaster. In some ways, he promoted infrastructure investment and stimulus spending, saying that it would be far better for the federal government to err on the side of spending too much rather than spending too little. However, he summarily rejected the idea that stimulus has to flow through infrastructure, saying that the most "visionary" projects were poorly suited for stimulus. In particular, the vaunted "shovel-ready" projects of 2009 were pure myth. He explained the shovel-ready is inherently contradictory because no one is going to spend the money on design, engineering, and environmental review if a project isn't already funded. It's no wonder, then, that Summers dismissed such a speculative, long-term venture as high speed rail. As an alternative, Summers said that the most effective, if least sexy, stimulus spending that the feds could do would be to give funds to state and local governments.  To my surprise, Babbitt sang the praises of the Interstate Highway System and, in particular, the 1956 act that created it and set the standard for its development across the 50 states. That's a bold admission from one of the county's most distinguished environmentalists. He did not, however, endorse a nationwide high speed rail system. Babbitt reminded us that the first national rail system -- the Transcontinental Railroad – and its financing arm, the Credit Mobilier, was "one of the biggest frauds of all time." As well, Babbitt rejects the concept of infrastructure banks, saying that unless there's a clear source of user fees, it doesn't matter where the capital comes from (he did not, however, dismiss Los Angeles' attempt to get federal funding for its "30/10" plan, though he did say that it should not lead to a national program). Instead of a national HSR program, Babbitt wants national standards to inform regional efforts, and he said that we should start in the most obvious place: the Eastern Corridor. He said that, unlike California, the mid-Atlantic has the density and history of rail travel that would make HSR a success. And he proposes a regional funding scheme: a gas tax imposed in the seven states that the corridor serves. If you think that states can't cooperate, Babbitt will remind you that he was once the governor of Arizona, one of the seven states of the Colorado River Compact.  In contrast with Babbitt's and Summers' sobriety, the avuncular, irrepressible Rendell sees infrastructure -- of all kinds -- as the best, and perhaps only, solution to the country's employment crisis. Dismissing Babbitt's claim that "there's no such thing as shovel-ready," Rendell proposed the establishment of a national capital budget. It would be $300 billion per year, to be spent over six years. That would take care of the $2 trillion maintenance and improvement backlog -- the one that prompted the American Society of Civil Engineers to award the country's infrastructure a D+ in its latest report card. And it would, said Rendell, create 12 million jobs. That's exactly the number of jobs that the economy needs to return to normalcy. How to pay for it? Stop spending $2 billion per day in Iraq and Afghanistan, says Rendell.  Petra Todorovich, of New York-based America 2050 , played the role of rational promoter of HSR with all the facts and figures about its benefits as well as a sober assessment of the political and financial obstacles. It's worth noting that Petra, unlike Babbitt, thinks that California's HSR system has the advantage of being in a single jurisdiction. Of course, though, the geography of California means that we'd be starting the line on the outskirts of Fresno. That's not exactly Penn Station.  One sure thing emerged from this weekend's conference: All signs--from Ed Glaeser's economic data about the value of cities to Ed Blakely's sobering descriptions of rebuilding New Orleans--suggested that the old model, dominated by the conquest of the crabgrass frontier, is dead. Everyone is waiting for the realization of a new model, which will most likely be inspired by the fight against climate change, the embrace of smart growth, and, yes, the need to rebuild our infrastructure. But that model will emerge at a geological pace, if ever. Until then, we will experience something so complex we can't even call it a model. If the collective opinions of these experts and power-brokers tell us anything, it is that the coming decades will not be planned. They will simply happen, and they will happen in different ways in different places. Is that too vague? I simply don't know how else to describe it.  Then again, maybe there will be no growth at all. Prof. Chris Nelson of the University of Utah told us that a host of factors -- including higher household densities and the utter inability of anyone short of Lloyd Blankfein to qualify for a mortgage -- means that more people will be renting and that we're not going to fill the glut of existing housing anytime soon (even as the total population, and the minority population, continues to grow). In other words, no one knows what's going on.  How far we've come from the times when Ike deployed bulldozers as if they were Sherman tanks. Which brings me back to high-speed rail. HSR is comforting. It's tangible. It's a thing. And it's an attractive thing at that. Maybe, then, it is simply the thing we're talking about because we don't know what else to do. We can dream about it while we wait for all those other forces to assemble themselves and create the cities of the future. A postscript: At one point, Prof. Nelson introduced what I have decided to refer to as the "McTenement" concept: the idea that 12 or 15 people -- three families -- could comfortably fit into your average, unexceptional suburban McMansion (many of which are vacant and under foreclosure).  When an audience member pointed out that many homeowners association restrictions would prevent such arrangements, someone else noted that many such regulations still permit an unlimited number of servants. In response to that anachronism, Ed Blakely, who is perhaps best known as New Orleans' "recovery czar," chimed in with a lighthearted, yet breathtaking, rejoinder.  "That helps me," said Blakely, who is African-American. "I don't know about you."  As Blakley knows all too well, we're all going to need help.   -- Josh Stephens

As a journalist, I regularly say some strong things about buildings and urban planning, although not without the anxious feeling deep inside that my big mouth will someday get me into trouble. And, as it turns out, not entirely without reason: sometimes, I can lose work because of my opinions. Wherein hangs the tale. The Los Angeles Chapter of Urban Land Institute -- how shall I put it? -- un-hired me as a documentation writer. I, among other writers, had been approached by the institute to provide written documentation of the two institute's continuing education seminars. After vetting and hawing and hemming, I was selected for the writerly task. The fee probably wasn't going to be a fortune, but it was a paycheck for a self-employed person during the slowest economic recovery in anyone's memory, and it would have helped.  Now, in this blog and other places, I have written critically -- very critically, but not uncivilly -- about the some of the dubious qualities of LA Live as an example of urban design.  I argued that this sports, entertainment and hotel cluster, which fills about 20 acres, essentially makes the southern end of downtown into a private enclave. And as I have written here and elsewhere, the whole $4 billion package is essentially a mousetrap to capture tourists, who may be tempted to stay and spend their money in this Vegas-sized extravaganza, without having ever ventured into the city proper, and then go home and tell the folks they've "seen L.A." I think it's a bad project, and a co-option of decades of planning by big money. Then the phone rang a few days ago. On the other end was an executive with the Los Angeles Council of ULI. The person was very courteous, and wanted to speak to me personally. The person told me, very civilly, that I could no longer serve as a writer-for-hire for Urban Land,  because, and this is verbatim, "we can't use writers who have opinions." Opinions, that is, on a multi-billion-dollar project in downtown Los Angeles, the developer of which, Anschutz Entertainment Group (AEG), looms above other Los Angeles developers like a turkey buzzard among pigeons. (I could have chosen a more flattering metaphor, such as "like an eagle soaring above the meadowlarks," but I'm feeling piqued.) Anyway, I politely pointed out to my caller that Urban Land Institute itself had recently given  LA Live an award. Couldn't an award be viewed as opinionary? "It was recognized for certain qualities," hedged the caller, who seemed uncomfortable. "No, it was given an award for excellence," I replied, "which is why I wrote that blog criticizing ULI's decision." The caller acknowledged that he/she/it had private opinions about LA Live, but in the official capacity as a Person Without Opinions, kept personal feelings close to the vest. As for my doing any work at ULI, well, I could always volunteer to work on committees. In a gracious l‘envoi, the caller told me to "keep holding our feet to the fire." Now, I understand that Urban Land Institute does not owe me a job. And I also understand the potential embarrassment ULI officials would suffer should an irate official with Anschutz Entertainment Group, the developer of LA Live, express displeasure that I was feeding at their trough, so to speak. On the other hand, unhiring me could be interpreted as censorship. How? Imagine, if you will, if I had written a highly flattering, sickeningly effusive review of LA Live? Would that overt expression of opinion have cost me paying work with a non-profit trade group. (Long silence for dramatic effect.) No, I don't think so, either.  I was punished for having a particular type of opinion about a highly conspicuous project, the developer of which enjoys a favorite-son status in the otherwise stagnant pool that was formerly the development industry in Los Angeles. And that's the burn. Urban Land Institute, you are a valuable organization that does fine work in advisory city planning in Los Angeles and the rest of the country. If you smell something burning, however, it could be your feet. May I advise you, very tactfully, to keep them out of your mouth.  --Morris Newman (Naturally, Morris Newman's opinions are his own and do not necessarily reflect those of CP&DR or its editors.)

The Malibu policeman's immortal warning "keep out of my beach community!" in the 1998 leisure-sport epic The Big Lebowski could just as easily have been uttered last autumn by certain residents of Orange County's unincorporated community of Sunset Beach. In this case, though, they would not be shouting at The Dude but rather at the entire City of Huntington Beach. Instead, a group of Sunset Beach residents are suing the City of Huntington Beach for, they say, unfairly imposing a 5% Users Utility Tax on them.  Last year residents of Sunset Beach, which has roughly 1,100 residents, commissioned an incorporation study that ultimately demonstrated a lack of viability, according to the Orange County Local Agency Formation Commission. Instead, because of Orange County's aggressive pursuit of so-called "small island" annexations, Sunset Beach was slated to be subsumed by Huntington Beach late last year. That decision was met with mixed reviews in the fiercely independent community.  "Some people thought that the study justified becoming our own city," said Mike Van Voorhis, president of the Sunset Beach Community Association. "There are others, me included, that when I looked at the study to become a city, it…made more sense to become part of Huntington Beach." Small island annexations are supposed to proceed without much fuss and without a popular vote. But the lawsuit suggests that a potential contradiction in state law could – in the absence of a clear court ruling on the Sunset Beach case – complicate countless other small island annexations throughout the California.  "The Sunset Beach situation has the capacity to have statewide implications," said Huntington Beach City Attorney Jennifer McGrath. This merger will take place against the backdrop of a lawsuit that has exposed a potentially troubling conflict between the Knox-Cortese-Hertzberg Local Government Reorganization Act of 2000 -- the law that governs annexations and local agency formations -- and Proposition 218, the 1996 ballot measure that requires voter approval for most local tax increases.  In 2000 Knox-Cortese-Hertzberg was updated to include a Section 56375.3, a provision for the streamlined annexation of unincorporated islands of less than 150 acres. The law gives LAFCOs the discretion to approve, but not to deny, island annexations without protest or popular votes. The provision was designed to do away with small islands in order to promote efficient governance.  For the most part, these annexations take place smoothly, as the law intended.  "There's been a lot of island annexations that have occurred over the last few years with this provision in the law," said Bill Chiat, executive director of the California Association of Local Agency Formation Commissions. "In almost all cases they're done collaboratively.  LAFCOs' commissions and cities rarely want to do an annexation where the residents aren't at least neutral if not supportive." Sunset Beach is not literally an island, but it comes fairly close, occupying a thin spit of coastline with Los Alamitos Bay on one side and the Pacific on the other.It's also adjacent to the Naval Weapons Station in Seal Beach. In the 107 years since its founding as a railroad depot, Sunset Beach has attempted to remain a place of houseboats, dive bars, and flip-flops while its larger, richer neighbor has gamely marketed itself as "Surf City, USA."  This marriage of beach bum and trophy wife comes about as a result of Orange County LAFOO's assignment of the 134-acre community to Huntington Beach's sphere of influence in 2009. Sunset Beach is one of 26 remaining small islands in the county that are being eyed for annexation. The Huntington Beach City Council began annexation proceedings in August of 2010. In January a court issued a preliminary injunction against the annexation, which has yet to be recorded by LAFCO.  A group of Sunset Beach residents called the Citizen's Association of Sunset Beach filed a suit Dec. 9, claiming that a 5% Utility User Tax that is charged throughout Huntington Beach violates Prop. 218. The suit originally challenged the annexation in its entirety but, following a January ruling that stayed the annexation, the suit is now limited to the utilities tax but is not challenging the annexation.  Plaintiffs have argued that the imposition of the tax violates their right to consent to the tax under Prop. 218. City officials contend that it is not a new tax per se but rather the expansion of city boundaries, which thus applies an existing tax to new residents. City Councilmember Keith Bohr, who was mayor when the council approved the annexation, said that Huntington Beach's 5% UTT is actually the lowest such tax among all the options that Sunset Beach faced. Annexation by Seal Beach, to the north, would have likely resulted in a higher tax, and the community's own incorporation study estimated that utilities taxes would have to be as high as 10%.  The City Council had initially not intended to levy the utilities tax but, acting on advice from McGrath, determined in November that existing Huntington Beach residents might sue if Sunset Beach was exempted from the tax. In any event, they say that the tax was not an issue during the discussions leading up to the approval of annexation and that they did not expect Prop. 218 to force their hand.  "When we sat down with them initially, they gave us 14 points that were really important to them and we agreed on 13 of the 14 points. This utility tax came up later after that," said Joe Carchio, mayor of Huntington Beach. "We were hopeful that we not going to tax them.  We didn't realize—at least I didn't realize—that Prop. 218 would come into play." McGrath contends that Prop. 218 does not, and should not, come into play because the tax is not "new" as such. Instead, she argues that it is an existing tax being levied on new taxpayers. LAFCO's annexation study projects that Huntington Beach would net roughly $600,000 annually on just over $1 million in tax revenues collected in Sunset Beach; Sunset Beach's portion of the UTT would amount to roughly $200,000. "These are taxes that residents of Huntington Beach pay," said McGrath. "By LAFCO's decision to annex that unincorporated area into the City of Huntington Beach they will be merely paying the same taxes as would any other resident of the city." If the UTT was not imposed until a citywide vote took place – which would not be until 2012, according to the city's current election calendar – then Huntington Beach would be forced to withhold some services from the residents of the untaxed area. If it did not, then, McGrath said, the city could face a lawsuit from existing residents who would likely see Sunset Beach as getting a free ride.  "Obviously the citizens of Huntington Beach don't want to subsidize the citizens of Sunset Beach," said McGrath. McGrath said that she is confident in her position in part because the 2000 update of Cortese-Knox-Herzberg came after the passage of Prop. 218, meaning that legislators have implicitly addressed any issue that Prop. 218 would raise.  "The Legislature is presumed to know what the law is when they're creating new legislation, so an inconsistency would have been remedied if it was needed," said McGrath.  Opposing counsel says that Prop. 218 requires that the consent of the annexed residents must take precedence or else the annexation should not take place.   "If you get a vote for purposes of annexation, that is sufficient to satisfy your right to a vote under 218," said plaintiff's attorney John McCarron, of law firm Stern, Van Vleck, and McCarron. "In the standard annexation, your vote (to annex) kind of qualifies as both and the constitution is satisfied. Here, that's not the case."  While the suit has been a headache for Huntington Beach, it could foreshadow further complications for countless future island annexations around the state.  Fresno County LAFCO has already faced a similar issue. In 2009 the City of Fresno was set to annex, and impose its city utilities tax on, 49 acres comprising a relatively upscale residential neighborhood through the islands annexation law. That annexation was suspended when the Howard Jarvis Taxpayers Association threatened a lawsuit. The city then sued LAFCO for suspending the annexation on the grounds that it was treating the Jarvis letter as a "protest" and thus violating Knox-Cortese-Hertzberg.   That case settled with an unpublished opinion.  "Courts have never settled the question as to whether or not a protest proceeding satisfies the requirements of Proposition 218," said attorney Kenneth J. Price, of Baker, Manock & Jensen, which represented Fresno LAFCO. "This is really a two-part analysis: the first question is, is there this conflict between the statute and 218? And even if there were a protest, does the protest satisfy the requirements of 218?"   Thus, the relationship between small island annexations and Prop. 218 remains very much an open question. This apparently intractable conflict in Sunset Beach will likely lead to a precedent-setting ruling if and when the suit goes to trial in August.  "I expect the question will continue to be raised as annexations occur in the future and there is some kind of assessment that comes with the annexation that people will be concerned if their costs increase," said Chiat.  If a court was to find in favor of the plaintiffs in Sunset Beach, the ruling could undermine the small islands annexation provision in Knox-Cortese.  "The whole point of an island annexation is to fast-track simple, small annexations," said Price. "And if a 218 proceeding is imposed that's exactly like a protest proceeding. It's going to slow down the process."  Cities could, of course, agree not to impose contestable taxes, but doing so would, according to McGrath, eliminate cities' incentive for annexing islands in the first place.  "They encourage this type of annexation so that counties are basically getting out of the business of running cities. They designed it this way," said McGrath. "If the city can't collect the taxes there's no incentive for the city to take it on."  Many opponents of the lawsuit feel that it amounts more to an expression of civic pride than of genuine concerns over governance.  "There is a legitimate legal issue that needs to be determined, but I believe that the people who have this lawsuit simply are trying to find a way to crush the annexation," said Voorhis. Representatives of the Citizen's Association of Sunset Beach were not available for comment before press time.  Huntington Beach officials insist that the Sunset Beach faithful have nothing to worry about.  "In the long run, much happier that they're going to be part of Huntington Beach and still maintain that small-town flavor in that their name is still there," said Carchio. "We're not going to go in there and start bulldozing properties and start putting up large hotels."  Contacts:  Joe Carchio, Mayor of Huntington Beach, 714-536-5553 Bill Chiat, Executive Director, California Association of Local Agency Formation Commissions , 916.442.6536 John McCarron; Partner; Stern, Van Vleck, and McCarron , 916.442.1298 Jennifer McGrath, Huntington Beach City Attorney, (714) 536-5555  Kenneth J. Price, Attorney, Baker, Manock & Jensen , 559.432.5400 Mike Van Voorhis, President, Sunset Beach Community Association

In 2007, then-Attorney General Jerry Brown established a new paradigm for planning in California. With his settlement in a lawsuit against San Bernardino County, he clearly signaled that cities, counties, and county subregions would have to account for, and attempt to mitigate, greenhouse gas emissions in their general plans under the California Environmental Quality Act and AB 32. In fact, Brown went so far as to vow to sue any city that failed to account for its greenhouse gas emissions. Last month, Brown's newly installed successor Kamala Harris, issued a sharp critique of regional plan in the Santa Clarita Valley in north Los Angeles County -- indicating that she will be carrying on this legacy. Commenting on a environmental impact report circulated by Los Angeles County planners, Harris says that the draft – which was revised and re-circulated late last year -- insufficiently addresses many issues, including greenhouse gas mitigation. Planners say that her approach, though in keeping with CEQA, could end up stifling the collaborative planning efforts that will be necessary to implement the Sustainable Communities Strategies that SB 375 calls for. The "One Valley, One Vision" (OVOV) plan will govern the next generation of growth both in the City of Santa Clarita and in the surrounding unincorporated areas of Los Angeles County. Founded in 1987 in the rugged hills north of the City of Los Angeles, Santa Clarita has grown to 176,000 residents both through build-out and voracious annexation of heavily-developed surrounding areas. The area, which consisted of barren hillsides 30 years ago, is expected to gain 90,000 dwelling units – an increase of 230 percent – by 2035, according to projections by the Southern California Association of Governments. These projections have inspired an effort that planners say is unique in California regional planning. As its name implies, OVOV is actually two plans in one: a general plan update for the City of Santa Clarita and an area plan update for the surrounding county territory. Planners from the city and county are drawing up separate documents and conducting separate environmental impacts reports, but otherwise they are coordinating and collaborating in an attempt to manage growth in the entire area. "The city is very unique because it's surrounded by unincorporated territory and the city has grown and annexed territory over the years so there was a real interest in joint planning," said Mitch Glaser, supervising regional planner with the Los Angeles County Department of Regional Planning. In an age when regional planning is coming to the fore because of SB 375, officials say that this sort of collaboration will become increasingly necessary. "As (the Southern California Association of Governments) is dealing with developing the first sustainable communities strategy in order to reduce greenhouse gases and vehicle miles travelled in the region, we're actually very supportive of the types of policies that are going into that plan," said Mark Butala, manager of comprehensive planning at SCAG. "The cooperation that we're seeing…is a model, on a smaller scale, of where we expect the region to go as we move forward in this more integrated planning approach." Both portions of the OVOV plan involve heavy doses of smart growth principles. The City of Santa Clarita is increasing density on its transit corridors, envisioning the repurposing of retail strips, and promoting mixed-use development -- all in a city that promotes itself as a quintessential suburb of single-family homes. Meanwhile, the county is down-zoning some of the more remote developable land while up-zoning land adjacent to major arteries. The plans also call for intensive development around the valley's three Metrolink commuter rail stations. All of this, planners say, is a recipe for sustainability. "We are supportive of the fact that county unincorporated area is willing to downzone considerably in some areas and the city is taking on additional density in a strategic way in their transit corridors," said Butala. The attorney general's office, however, contends that the harmony that has developed between city and county does not excuse what it considers to be an insufficient environmental review. The attorney general's office's letter, signed by Senior Attorney Susan Durbin on Harris' behalf, calls into question both the plan and some of the methodology present in the re-circulated DEIR. The letter was directed only at the county's portion of OVOV; her office did not raise concerns about the city's portion.  Durbin was one of Jerry Brown's key aides on greenhouse gas emissions when Brown was Attorney General. The letter criticizes the plan's projected increase in ground-level pollution as well as in greenhouse gas emissions from increased car trips. The letter notes, "rather than proposing land use changes that reduce the need to drive  in the Valley, the OVOV Plan will result in a 120 percent increase in existing driving trips," for a total of 3 million additional annual miles. Most damningly, the letter hones in on the DEIR's admission that the increase in car trips far outstrips the projected increase in population. The letter criticizes the plan for relying on vague mitigation measures, such as increased use of transit, without offering any assurances that the mitigation measures will be feasible. And the attorney general's office was disappointed in what it considered a lack of information on certain key points. For example, our concern about full disclosure of housing development that has already received entitlements arose because the revised DEIR seems less informative on this point than the original EIR," wrote a spokesperson for the Department of Justice in an email. (The spokesperson requested that neither he nor staff attorneys be identified by name; this article presents those comment as official representations of department's views.) Environmental groups are also wary of the plan. Though it is separated from the perennially smoggy San Fernando Valley by the Santa Susana Mountains, the Santa Clarita Valley emits plenty of its own pollution, which is then trapped by the mountains that surround it on all sides. They say that concerns such as Harris' are well founded. "The Santa Clarita Valley…suffers from some of the most intractable air pollution, ozone problems in the region," said Damon Nagami, staff attorney with the Natural Resources Defense Council.  We see this as a battleground and a place where we're glad to see the attorney general stepping in and taking a strong stance that GHG emissions need to be properly analyzed and fully mitigated for." County planners say that they would like to be able to mitigate more of the impacts from dispersed development, but their hands are tied by several factors. While it may seem that greenfield development on the urban fringe is a thing of the past, thanks to the recession and current planning trends, in the Santa Clarita Valley is, to an extent, stuck in the 1980s. County planners are working with SCAG's population projections as well as the Regional Housing Needs Assessment, both of which compel them to accommodate a certain number of units. As well, tens of thousands of undeveloped units are already entitled and therefore exempt from OVOV, no matter how much those developments might clash with OVOV's goals. Glaser said that SCAG projects an increase of 61,000 dwelling units in the unincorporated area, but 33,500 percent of that growth has already been approved (and not yet built). This leaves only 45 percent of potential new development under the plan's jurisdiction, and the county is reluctant to constrict development further. "The total amount of growth that's provided for under OVOV would accommodate all of what's being proposed by SCAG," said Paul Brotzman, Santa Clarita's director of community development. But in accommodating that growth, the plan – especially the county's portion – is constrained. "We're a very large jurisdiction that has a large area that has not been developed. There has to be some sort of development potential," said Glaser. "We're not in a position where we can go out and designate all remaining land as permanent open space." County planners say that the attorney general's office did not fully appreciate these constraints. The attorney general's letter, however, says that that DEIR falls short by not identifying the location of the approved units. As well, Harris' office may be sending a message to other planning agencies to indicate in no uncertain terms that she is serious about enforcing greenhouse gas regulations. "I do think that part of the reason why this was publicized is that it's absolutely a message to all other local jurisdictions that this administration is going to be looking at this just as much as Mr. Brown's administration did," said Glaser. Glaser noted that he was, in fact, taken aback by the fact that he learned of Harris' concerns via a press release rather than by an advance copy of the letter. More importantly, though the attorney general may be within her rights to consider CEQA litigation against the plan, CEQA's narrow concerns for individual plans does not take into account region-wide efforts to combat greenhouse gases. The North County Subregion is only one of several subregions in Los Angeles County, which is, in turn, only one piece of the five-county SCAG region. Because the Sustainable Communities Strategies that are now under development take a regional approach to reducing vehicle miles travelled and GHG emissions, planners say that to single out one plan like OVOV – which, they say, is intended to complement the region's SCS – ignores the benefits that will accrue to the county as a whole. "Our modeling and analysis has shown that by increasing growth and densities strategically in parts of our region, while showing some localized adverse impacts, can have some potentially very positive impacts at the greater regional scale," said Butala. The attorney general's office confirmed that they did not contact SCAG before submitting their letter to the county. They were, however, "generally aware of the development of the Sustainable Community Strategy while we were preparing our comments," according to the Department of Justice spokesperson. Regardless of the substance of Harris' letter, officials working on the OVOV plan say they were taken aback by the way that she delivered it. The attorney general's office not only sent the letter directly to the L.A. County Planning Department but also issued a press release that broadly publicized her concerns. "I do think that part of the reason why this was publicized is that it's absolutely a message to all other local jurisdictions that this administration is going to be looking at this just as much as Mr. Brown's administration did," said Glaser. "I think that cities and counties should be on notice that the old tricks just aren't going to fly any more," said Nagami, of the NRDC. The Department of Justice spokesperson wrote that the office will be keeping a close watch on cities' and counties' plan updates. "The AG will evaluate on a case-by-case basis whether, when, and where litigation is the best option to fulfill our office's statutory responsibility to enforce CEQA," wrote the department spokesperson. "Cities and counties should perform their duties under the planning laws and under CEQA because that is their job and their duty to their residents, not because the AG might sue them." Though Los Angeles County faces the relatively immediate threat of a lawsuit if it does not satisfy the attorney general's office, planners hope that this sort of dispute becomes less common as considerations for greenhouse gas emissions become common practice. "I think there's a learning curve, but there was (one) with the basic disclosure and evaluation and mitigation of all sorts of environmental impacts four years ago when CEQA was young in the early 1970s," said John Buse, senior attorney with the Center for Biological Diversity. "Once that becomes more routine I don't think it's going to be any more difficult than looking at any other air quality impacts, for example." Contacts & Resources One Valley, One Vision Plan  Paul Brotzman, Director of Community Development, City of Santa Clarita, 661.255.4330 John Buse, Senior Attorney, Center for Biological Diversity, 323.533.4416 Mark Butala, Manager of Comprehensive Planning, Southern California Association of Governments, 213.236.1809 Mitch Glaser, Supervising Regional Planner, Los Angeles County Department of Regional Planning, 213.974.6476 Damon Nagami, Staff Attorney, Natural Resources Defense Council, 310.434.2300

An appellate court has directed a trial court to set aside all of a project's approval because portions of an environmental impact report were found to be inadequate. The Fifth District Court of Appeal declined to follow the practice of allowing severance of project approvals unaffected by the California Environmental Quality Act (CEQA) violation. Instead, the court required that the project approval be set aside in its entirely once the CEQA violation was shown. The disputed project involved land owned by the California State University, Fresno.  The university had leased the property to an associated university foundation, which ground leased the property to developer Kashian Enterprises for a 45-acre mixed-use project adjacent to the school's basketball arena. The CSU Fresno Board of Trustees certified an EIR and approved the project, called Campus Pointe, in 2007. The owner of a Clovis shopping mall located three miles away filed a lawsuit alleging that the EIR was inadequate and that Trustee Moctesuma Esparza had a conflict of interest because he held a sub-sublease for the cinema portion of the development project. Although Esparza resigned from the board during the project approval process, Fresno County Superior Court Judge Jeffrey Hamilton in 2009 determined a conflict of interest existed and voided the sub-sublease between Kashian and Esparza. Hamilton also concluded that the EIR's analysis of water supply, traffic and parking, and air quality was inadequate. The plaintiff appealed because Hamilton's determination did not halt the entire project. The first CEQA question for the Fifth District concerned the obligation of the trial court to issue a writ of mandate following the entry of judgment. Hamilton had entered a judgment in favor of the project opponent, but he did not issue a writ, which ordinarily would specify what the Board of Trustees must do to satisfy CEQA. On this procedural issue, the appellate court held that Public Resources Code § 21168.9 makes the issuance of the writ mandatory. The appellate court's most significant holding, though, has to do with what CEQA practitioners refer to as severance. Under this approach, if the trial court finds that an element of the CEQA document must be redone, the court may sever one portion of the project from the portion tainted by the invalid CEQA and allow the untainted portion to proceed. While many practitioners believe that such an approach is allowed by the California Supreme Court and appellate courts, as well by as the CEQA statute and CEQA Guidelines, the Fifth District disagreed. "The statutes and CEQA Guidelines provide for the certification of an EIR when it is complete, and the concept of completeness is not compatible with partial certification. In short, an EIR is either complete or its not," Justice Betty Dawson wrote for the unanimous three-judge panel. " he trial court's determination that the final EIR was inadequate in certain respects requires an order directing the Board of Trustees to set aside its certification of the final EIR as well as its approval of the project," Dawson wrote. If this decision remains undisturbed, the issue of severance in CEQA cases will likely have to be resolved by the California Supreme Court. As for Campus Pointe itself, most of the housing portion has already been constructed. The retail and office components remain unbuilt. The Case: LandValue 77, LLC v. Board of Trustees of the California State University , No F058451, 2011 DJDAR 3937, 2011 Cal. App. Unpub. LEXIS 1312. Filed February 23, 2011. Ordered published in part March 16, 2011. The Lawyers: For LandValue 77: David Douglas Doyle, Doyle & Schallert,  (559) 227-2600 . For the Board of Trustees: Ethan P. Schulman, Crowell & Moring,  (415) 986-2800 . For developer Kashian Enterprises: Harriet Steiner, Best, Best & Krieger,  (916) 325-4000 .

Lately, any murmurs of  eliminating public agencies  make people understandably jumpy. Wouldn't it be nice if not all land use institutions come crashing down at all once? So it's no wonder that the possible axing of the City of Rancho Cordova's Planning Commission has raised concerns.  In fact, the proposed "elimination," on which the City Council is soon expected to vote, is not even an elimination in the permanent sense. It would, according to both commissioners and city officials, be a temporary disbanding in response to a painfully slow real estate market. It is, city officials insist, a move for streamlining the decision-making process and not necessarily a blow to democracy and planning expertise.  "The general feeling was efficiency," said City Manager Ted Gaebler. He noted that state law requires that "a city will have a planning function; it does not necessarily have a planning commission." There was a time not long ago, in the short history of Rancho Cordova, that the Planning Commission was vitally necessary. Sitting roughly in Sacramento's lap, Rancho Cordova famously remained unincorporated as boom and bust at neighboring aerospace firms strained the area and its workforce. Since incorporating in 2002, it has grown to 62,000 residents, booming alongside the capital's other hypertrophic suburbs.  The recession, however, has been particularly unkind to Rancho Cordova.  Although up to 34,000 units remain in the development pipeline, a scant number of them are expected to go forward in the foreseeable future. At the same time, Gaebler said that the City Council's docket is fairly light, thus freeing up council members to focus on development at the same level of detail that the Planning Commission would have. Ray Savorn, current chair of the Planning Commission, added that in a city defined by growth, many council members are well versed in land use.  "The City Council is not really bogged down as it used to be," said Savorn. "They can take this on their plate at this time and handle it judiciously."  Gaebler said that the move is not necessarily intended to spur economic development. Though developers might perceive the process as being easier, and friendlier to development, with the elimination of a step in the approvals process, he insisted that the City Council would not necessarily address projects any differently than the Planning Commission would have.  Gaebler said that the City Council would not want to shoulder this burden permanently.  "I think they anticipate, if and when we get out of this downturn, that the workload for the Planning Commission, and therefore the council, would pick up," said Gaebler. "They would reconsider reconstituting the planning Commission." The city ordinance suspending the Planning Commission is expected to include a clause stating that the City Council can reconstitute it without passing a brand-new ordinance.  While the planning commission is on hiatus, residents of Rancho Cordova can ponder what sort of democracy they want to have. Planning Commissions, in their own small way, offer an object lesson in the merits of expertise versus those of direct democracy. Acting as an advisor to the City Council, a planning commission draws elected officials that much further away from the decisions they make. (In the case of the City of Los Angeles, the Planning Commission sits above Area Planning Commissions, thus adding yet another step to the process.)  Do residents trust appointed "experts" to decide on the merits of development proposals, or would they prefer that their elected officials make accountable, transparent decisions? It's likely that not enough dirt is going to move in Rancho Cordova for its residents to answer that question. But it's one that everyone should ask, recession or no.  Even as it goes on extended hiatus, Savorn insists that the expertise will not disappear.  "I would like to think that…all of us would be more than willing to step and be another set of eyes" if the City Council needed advice, said Savorn. "I think it would still serve a purpose for us to be an ad hoc planning commission."  -Josh Stephens

Since January we have witnessed the unusual spectacle of elected local officials throughout the state expressing intense and emotional anger and frustration about the possible end to redevelopment -- and no reaction at all from anybody else. Nothing from the people in blighted neighborhoods, who supposedly benefit from better housing and more jobs and more retail choices. Nor from the environmentalists who are always calling for more infill development. Nor even from the supposed fat-cat beneficiaries of the redevelopment system: the developers themselves. What's going on? Why are local officials bleeding all over the sidewalk, as it were, while everybody else just sidesteps and walks on? The answer is a long one but not surprising. What we are witnessing is the last act in an emotional drama that began 33 years ago, when the people of California, in their wisdom, approved Proposition 13--which severed the connection between local property taxes and local spending by giving the state the power to decide who gets how much of the property tax. No matter whether Howard Jarvis and the other authors of Proposition 13 meant to do this, the effect was to downgrade cities and counties from partners in governing to just another special interest group feeding at the trough in Sacramento. Way back when, cities responded to this uncomfortable situation with three very understandable responses. First, they became masters of the Prop 13 workaround--the most significant of which was redevelopment, which allowed them to unilaterally capture a greater share of the property tax. They were often able to use this tax increment to create projects in redevelopment areas that generated sales tax or bed tax that could go into their general fund. (Ironically, Proposition 13 was originally viewed as the end of redevelopment in California because it cut so much tax increment for then-existing projects.) Second, they decided that if they were going to be a special interest group in Sacramento, they'd be as good a special interest group as they could be. The League of California Cities' rise as a lobbying force dates from this period. And third, they seethed--with anger and resentment and humiliation--that they had been put in the position of having to politick in Sacramento just like everybody else. They found themselves considering that all of their carefully crafted efforts could be overpowered by a couple of carefully placed TV ads from the California Teachers Association featuring schoolchildren. Such a campaign has usually been good enough to trump all lobbying by cities (and counties, for that matter). And then, our local government leaders lived with this seething resentment and this basic conflict inside them for more than 30 years. Until January, when the governor found a very skillful way to call the question on redevelopment in spite of Proposition 22, which passed last November. Proposition 22, of course, was designed to protect redevelopment revenue (as well as other local government revenue) by making it unconstitutional for the state to shift those funds away from redevelopment agencies "directly or indirectly." The cities didn't think the state could balance the budget without taking more redevelopment money. After all, redevelopment funds have doubled in less than a decade, while state general fund revenues have declined. But at least Proposition 22 gave them more power in the eternal struggle over what money remained. It was clear that the League of California Cities and the California Redevelopment Association expected to deal with this latest situation the same way they had dealt with every other attack on redevelopment over the past 35 years: They were prepared to up yardage in order to maintain possession of the ball. For the first half of that time � from the late '70s to the early '90s � they gave up power: on the definition of blight, the requirement to set aside money for affordable housing, and the like. For the second half � a time of chronic budget problems for the state � they gave up money. The League and the CRA were clearly prepared to do this again, except the governor surprised them. He didn't want yardage. He wanted to call the game. To him, it was the only way around Proposition 22. Can you imagine what it's like to carry all this conflict around inside you for 33 years? And then think you've finally won with Proposition 22? And then you get outfoxed by the governor--who, by the way, used to be a mayor and used redevelopment very effectively? And then discover that no one else cares and no one else comes to your defense? No wonder there's been so much yelling and bleeding on the floor since January. And no wonder the League and the CRA decided that the best strategy was simply to stonewall � to insist that they were going to hold their ground and not make a deal, until it was almost too late. It's an emotionally satisfying approach. But it hasn't worked. Redevelopment isn't gone yet � at least not as of this writing � but it's doubtful that it will survive in anything like its current form. It may go away completely, or it be cut far more deeply than anyone previously imagined, or it may morph into something very different.   So as California assesses what redevelopment might be in the future, it's probably a good idea to step back and remember what it is and what it is not. First, it is not a job creation or economic development program, as the League and the CRA have insisted all year. In fact, whenever they have fallen back on the jobs/economic development argument � which is every time redevelopment is under attack � I've worried that it's just opening the whole system up for attack. Surely, sooner or later somebody in this town is going to say, "If we are going to spend $6 billion on economic development, would we do it this way?" (Meanwhile,  the governor seems to have embraced the agenda of the Silicon Valley Leadership Group, which named education as an important economic development tool.) What redevelopment is designed to do--and what it does well--is facilitate public infrastructure investment and private real estate development in particular geographical locations. The need for that job has not gone away. In fact, with AB 32 and SB 375 in place, that job is probably more important than ever. But one of the oldest lessons in construction is, don't confuse the job you are doing with the tool you are using. And that's what cities are doing right now. Cities have used redevelopment so long for so many things--understandably, because what other options have they had? � that they have confused the job with the tool. Yes, infill development needs to proceed. Yes, tax-increment financing helps do that. But other cities around the country and around the world somehow get this done every day without TIF � or with limited access to it. In California, we are about to remember--for the first time in a long time--what it's like to bring an entire toolbox to the job of repairing our cities.

The Ninth U.S. Circuit Court of Appeals has reversed a District Court's grant of summary judgment to two adult bookstores. The stores had claimed that a Los Angeles ordinance requiring the dispersal of adult businesses violated the First Amendment. The Ninth Circuit found that the declarations upon which the summary judgment was based were biased did not amount to "actual and convincing" evidence sufficient to cast doubt on the rationale for the ordinance. The ruling is the latest in a 15-year-old case that the court called "resilient." Yet the ruling settled nothing. All the Ninth Circuit did was return the case, known as Alameda Books, to District Court for trial. First, some background. In the mid-1970s, the City of Los Angeles conducted a study from which city officials concluded that incidences of crime are higher in areas with concentrations of adult businesses. In 1978, the city enacted an ordinance requiring, among other things, that an adult arcade not be located within 1,000 feet of an adult bookstore. Five years later, the city amended the ordinance to clarify that an adult arcade and adult bookstore also could not operate in the same establishment. Alameda Books and Highland Books opened during the early 1990s as combination adult bookstore and arcade. In 1995, a city inspector informed Alameda Books and Highland Books that they were in violation of the ordinance. They brought suit in U.S. District Court for the Central District of California pursuant to 42 U.S.C. § 1983, a federal statute that provides a remedy for persons who, under color of state law, are deprived of rights, privileges or immunities granted under federal law or the U.S. constitution. The bookstores won at the trial court and appellate court levels, but the U.S. Supreme Court reversed those decisions in City of Los Angeles v. Alameda Books, Inc., (2002) 535 U.S. 425 (see C P&DR Legal Digest, June 2002 ). In a 5-4 decision, the high court created a new framework, based on Renton v. Playtime Theaters, Inc, (1986) 475 U.S. 41, for reviewing ordinances aimed at reducing the secondary effects of adult businesses. The case then hung in limbo for several years while the Ninth Circuit decided other cases based on the Supreme Court's ruling. Finally, District Court Judge Dean Pregerson granted summary judgment against the City of Los Angeles, finding the bookstores' evidence was actual and convincing enough to cast doubt on the city's purpose in enacting the ordinance. On appeal, the Ninth Circuit found that the declarations were facially biased and insufficient to call into question the municipality's justification of the ordinance. The Ninth Circuit Court, citing Renton, articulated the applicable legal test to determine whether an ordinance violates the First Amendment: 1) Does the regulation completely ban protected expression? 2) Was the city's purpose in enacting the provision to ameliorate secondary effects? 3) If so, the regulation is subject to "intermediate scrutiny" and the court "must ask whether the provision is designed to serve a substantial government interest, and whether reasonable alternative avenues of communication remain available." For a plaintiff to show no substantial government interest exists, the plaintiff must either demonstrate that the municipality's evidence does not support its rationale or furnish evidence that disputes the municipality's factual findings. If the plaintiff fails to do either, then the regulation stands. If the plaintiff succeeds in casting doubt on the city's rationale, the burden shifts back to the city to supplement the record with new evidence justifying the ordinance. To successfully cast doubt, the plaintiff must offer "actual and convincing" evidence that does "more than challenge the government's rationale; it must convincingly discredit the foundation upon which the government's justification rests." (Imaginary Images, Inc. v. Evans (4th Cir. 2010) 612 F.3d 736, 747 (citing Giovani Carandola, Ltd. v. Bason (4th Cir. 2002)303 F.3d 507, 516).) Under the Supreme Court's Alameda Books ruling, a municipality's justification cannot be that its regulation will reduce secondary effects simply by reducing speech proportionately. In this case, the issue is whether the ordinance was designed to serve a substantial government interest. The specific question for the Ninth Circuit was whether the evidence provided by Alameda Books and Highland Books (which now operate a single corporation, Beverly Books, Inc.) was sufficient to cast doubt on the city's rationale. The Ninth Circuit explained that a plaintiff must do more than point at a municipality's lack of empirical evidence or challenge a city's methodology. The court cited a Sixth Circuit decision, Richland Bookmart v. Knox County, (6th Cir. 2009) 555 F.3d 512, 527-28, in explaining that a plaintiff bears a heavier evidentiary burden in attempting to cast doubt than the municipality does in justifying the ordinance. Providing the bookstores' evidence were declarations from the vice president of Beverly Books and from an individual who installs adult arcade systems, including the systems in the plaintiffs' establishments. Both men said that the adult bookstore and adult arcade could not be separated because a stand-alone adult arcade would not attract a significant number of customers and would be perceived as "seedy." The ordinance would thus reduce secondary effects simply by reducing speech proportionately, in violation of the First Amendment, they sad. The declarations contained lengthy passages of identical text. Despite the city's objection to the bias of the evidence, Judge Pregerson found the declarations to be actual and convincing enough to justify summary judgment in favor of the bookstores. The Ninth Circuit, however, found that the failure of the District Court to take into account the bias of plaintiffs' witnesses was a significant issue. "The content of the declaration strike us a plausible, but the sources are necessarily suspect." District Court Judge Richard Cudahy, sitting by assignment to the Ninth Circuit, wrote for the court, noting the men's self-interest in the matter. Because the credibility of a witness is almost categorically a trial issue, summary judgment was inappropriate, the unanimous three-judge appellate panel ruled. The court remanded the case for further proceedings in District Court. Since the U.S. Supreme Court's ruling in Alameda Books, the Ninth Circuit has yet to find that a plaintiff has successfully cast doubt on a city's evidence or rational for adult business regulation. This case articulates an important presumption in favor of a city's reasoning. The Case: Alameda Books et al. v. City of Los Angeles, No. 09-55367, 2011 DJDAR 1672, 2011 U.S. App. LEXIS 1769. Filed January 28, 2011. The Lawyers: For Alameda Books: Clyde DeWitt, (702) 386-1756. For the city: Steven Blau, city attorney's office, (213) 978-8244.