A county cannot employ a development agreement to permit a use not otherwise allowed by zoning, the Fifth District Court of Appeal has ruled. In the first published decision to find a substantive limit to the development agreement law, the court said Tuolumne County could not use a development agreement allowing one agricultural property owner to conduct weddings and other events that are not allowed by the applicable zoning district and county zoning ordinance. The county violated the uniformity requirement in Government Code § 65852, which requires that regulations within a zone be the same, according to the court. The fact that the county used a development agreement did not change the uniformity mandate. "The development agreement law does not authorize cities and counties to create forms of zoning disunity they otherwise lack authority to create," Justice Rebecca Wiseman wrote for the unanimous three-judge panel. Five years ago, Ronald and Lynda Peterson filed an application with the county seeking to use their 37-acre parcel for hosting weddings and similar events. Their property was zoned Exclusive Agriculture, 37-acre minimum (AE-37), a zoning that did not provide for weddings and other commercial events with or without a conditional use permit. Some neighbors submitted opposition letters to the application because of noise and parking concerns. County planners and the Planning Commission recommended denial of the application, and during a September 2003 meeting of the Board of Supervisors, the Petersons withdrew their application. One month later, they submitted a revised application that relied on proposed ordinance amendments that would have permitted weddings, lawn parties and similar outdoor business activities in the AE zoning district. Supervisors declined to approve these amendments, but they did agree to create a special exemption for the Petersons by way of a development agreement approved in July 2005. The ordinance approving the development agreement granted the Petersons the right to have "weddings, retirement or birthday parties, service club functions, and similar activities as conditional uses." At the same time, the board approved a conditional use permit allowing the uses, and a mitigated negative declaration. A group called Neighbors in Support of Appropriate Land Use sued, arguing that the county lacked authority to approve the Petersons' application and violated the California Environmental Quality Act. Tuolumne County Superior Court Judge James Boscoe agreed with the former claim, and he declared the development agreement and conditional use permits void. Judge Boscoe determined the CEQA claim was not ready for judicial review. The county appealed, and the Fifth District upheld the lower court. The question, according to the appellate court, was this: " an a county approve an application to devote a parcel of real property to a use disallowed by the applicable ordinance even though the county does not rezone the property to a district allowing the use, does not amend the text of the zoning ordinance to allow the use in the existing district, does not issue a conditional use permit consistent with the zoning ordinance, and does not grant a variance?" The court's answer was no. "If a zoning scheme is like a contract, the uniformity requirement is like an enforcement clause," Wiseman wrote. "By creating an ad hoc exemption to benefit one parcel in this case — an exception that was not a rezoning or other amendment of the ordinance, not a conditional use permit in conformance with the ordinance, and not a proper variance — the county allowed this ‘contract' to be broken." "Instead," Wiseman summed up, "the county simply let one parcel and property owner off the hook." The county argued that the development agreement law (Government Code § 65864 et seq.) lets development agreements specify uses not allowed by a zoning ordinance, that the county can use the law to permit exceptions, and that a development agreement need not be consistent with zoning ordinances. But the court again emphasized the uniformity requirement. The requirement, the court said, trumped any exceptions to the requirement that the county claimed are contained in the development agreement law. The Case: Neighbors in Support of Appropriate Land Use v. County of Tuolumne , No. F051690, 07 C.D.O.S. 14060, 2007 DJDAR 18104. Filed December 7, 2007. The Lawyers: For Neighbors: J. William Yeates, Kenyon Yeates, (916) 609-5000. For the county: A. Paul Griebel, county counsel's office, (209) 533-5517.

Sacramento may be flooded with red ink these days – after all, the state's grappling with a $14 billion budget deficit – but that's not the only immersion the locals are talking about. As the feds get tougher about flood hazards, should the city go back to living on stilts, as it did in the old days? California's capital city is one of the most flood-prone metro areas in the nation – and Sac-town's characteristic state of denial got harder to maintain last week, when the Federal Emergency Management Agency announced it would designate the Natomas area as a flood hazard zone. That designation – long forestalled by the efforts of Sacramento's congressional delegation – will require residents to get flood insurance and could well force a de facto building moratorium . Mayor Heather Fargo, who's currently running unopposed for re-election, has been complaining about FEMA and as a result is getting hammered in the local paper for supposedly putting the city's development plans over public safety. Congresswoman Doris Matsui has said she's not going to try to overturn FEMA – something Bob Matsui, her predecessor and late husband, did successfully back in the ‘80s. There's no doubt that the FEMA move puts Sacramento in a tough position. Located on the north side of the American River, between downtown Sacramento and Sacramento International Airport, Natomas is just about the last undeveloped area in the City of Sacramento. It's the home of Arco Arena, where the Sacramento Kings basketball team plays. Development was held up for many years in the 1990s because of flood concerns but in the recent housing boom it's been a cash cow for Sacramento developers, and the city. During recent years, about half of the new housing in Sacramento has been built in Natomas, and a lot more development is in the pipeline . So what's a flood-prone city to do? Maybe Sacramentans should go back to building houses the way they used to – and, apparently, the way their Delta neighbors are beginning to do again. Back in the 19th Century, most Sacramento houses were built on the assumption that the ground floor would flood sooner or later. Sure, there was a ground floor. But the main floor was actually the second storey, and the main entrance was a stairway from the street up to the second floor. Many of these old houses still exist , especially in the Midtown neighborhood of Sacramento. Should the flood-prone Sacramento area go back to building houses that start on the second floor? Actually, it's already happening. One of the standard infill housing types throughout California today is the tall, skinny three-story residence (either a townhome or a Although they look odd , these new houses with raised living spaces in Isleton may provide a model for flood-prone Sacramento. single-family house designed like a townhome) with a garage on the ground floor and living space on the second and third floor. It's practically infill on stilts. I've seen these projects all over the place. There's one about a block from our office in Downtown Ventura. But the flood-resistant nature of this particular housing type didn't really strike me until Saturday, when I stopped by the Delta town of Isleton – 30 or so miles down the Sacramento River south of the capital – and checked out the first new subdivision built in the city in something like 80 years. The old Delta cities in this area – Isleton, Walnut Grove, Locke – are tightly laid out in the late 19th Century style, and they're separated from the river by a major levee, which doubles as a road. In Walnut Grove, some of the buildings have a ground floor that fronts on a downtown street and a second storey that fronts on the levee road. But this new development is something … um … different , as this photo taken by Allison Joe suggests. I'm not sure whether Isleton actually required Renovo Communities to use the first-floor garage approach for the 331-unit "Village on the Delta" . But all the models included in the subdivision are three stories with garage on the bottom. Weird-lookin'? Yeah. But flood-proof for sure! So maybe Mayor Fargo could blunt some of the criticism she's been getting by adopting the Isleton approach. After all, does it really matter if you car floods – so long as your living space is high and dry? -- Bill Fulton

In almost shockingly candid interview with the Los Angeles Times , Gov. Arnold Schwarzenegger concedes that his earlier answers for solving the state's budget and governance problems were based on his poor understanding of the problems and the system. You might recall the 2003 recall campaign, when Schwarzenegger said he could solve the state's budget problems simply by eliminating "waste, fraud and abuse." He now says these things are not a factor in the state's projected $14.5 billion budget deficit. The governor also has changed his mind on term limits. Here's what the former term limits supporter has to say now: "The special interests and lobbyists up there are so much more sophisticated and so much more advanced than the politicians are. ... So who is it really helping? I am seeing this firsthand. The people I finally got used to working with now will be kicked out." What is most remarkable to me is not Schwarzenegger's new positions, but his willingness to admit publicly that governing California is not the piece of cake that he said it would be. Long-time Sacramento insiders and observers might respond, "No kidding." You can read the full interview here . - Paul Shigley

The Humboldt County district attorney cannot sue Pacific Lumber Company for allegedly submitting false information during the state's processing of an environmental impact report and sustainable logging plan, the First District Court of Appeal has ruled. The court ruled that the district attorney's lawsuit was blocked by a section of the state Civil Code and by the Noerr-Pennington doctrine, which protects lobbying and petitioning activities. The court did not rule on the legitimacy of Pacific Lumber's allegedly fraudulent statements. Pacific Lumber Company has been involved in an enormous amount of litigation since financier Charles Hurwitz acquired the logging company in 1986. (The company is currently in bankruptcy proceedings in Texas. See CP&DR Environment Watch , November 2007.) However, the suit filed by Humboldt County District Attorney Paul Gallegos in early 2003 was different. Gallegos contended that Pacific Lumber submitted false information downplaying the potential for logging to cause landslides in the Bear Creek, Elk River and Jordan Creek watersheds. The California Department of Forestry and Fire Protection (CDF) relied on this information to certify an EIR and approve a "sustained yield plan" that permitted logging, according to county prosecutors. They sought a civil penalty of $2,500 for every illegally harvested tree, or about $250 million all together. Even though Humboldt County has been the scene of logging protests and litigation for many years, the district attorney's suit appeared to take the controversy to a higher level. Pacific Lumber poured $300,000 into an effort to recall Gallegos, who was first elected in 2002, but 61% of voters backed the district attorney in a March 2004 recall election. While it lost in the political realm, Pacific Lumber had much better success in court. In May 2004, Humboldt County Superior Court Judge Christopher Wilson rejected the prosecutor's request to prohibit Pacific Lumber timber harvesting, but he allowed the district attorney to amend the lawsuit. Gallegos did so, but Superior Court Judge Richard Freeborn ruled in June 2005 that the company was immune from the lawsuit. The district attorney appealed, but a unanimous three-judge panel of the First District upheld the lower court. The trial court ruled that Civil Code § 47, subdivision (b) provides absolute immunity to communications made as part of a judicial or quasi-judicial proceeding. The idea is that citizens should be able to communicate with government agencies without fear of litigation over what they say. "Pacific Lumber's communications, whether fraudulent or not, fall squarely within the scope of the litigation privilege," wrote Alameda County Superior Court Judge Jeffrey Horner, sitting by assignment to the First District. The district attorney argued that § 47(b) was inapplicable because his lawsuit was brought under the Unfair Competition Law (Business and Professions Code § 17200 et seq. ). The Unfair Competition Law forbids "any unlawful, unfair or fraudulent business act or practice." The district attorney contended that Pacific Lumber's actions were fraudulent because the company submitted false information after the close of the 90-day public review period, and then submitted a correction at the last minute to the wrong government office. The First District, however, found that the § 47(b) immunity does not "evaporate merely because the plaintiff discovers a conveniently different label for pleading what is in substance an identical grievance arising from identical conduct as that protected by § 47(b)." The federal Noerr-Pennington Doctrine provides similar immunity for any petitioning activities before the courts and government agencies. But there is a "sham exemption" to Noerr-Pennington. The district attorney argued that Pacific Lumber's activities fell into an area covered by the sham exemption. The First District disagreed. For the sham exemption to apply, Pacific Lumber had to believe that there was no way it could prevail in the government process, and that it was using the government process to interfere with a competitor. Neither was the case here, the court found. Not only did Pacific Lumber believe it could prevail, it in fact did, the court noted. " ven if we were to recognize an expansion of the sham exemption for fraudulent conduct in adjudicatory proceedings," Horner added, "we would nonetheless conclude that the fraudulent conduct alleged here is not actionable because the state has failed to adequately allege that it deprived the CEQA proceedings of legitimacy." Besides, the court noted, CDF adopted a restrictive logging plan as a result of the CEQA process. Only after intense lobbying by Pacific Lumber in early 1999 did CDF modify the plan to permit more logging — and that is the plan of which the district attorney complains. Pacific Lumber's lobbying is "a classic form of political expression" that is immune from liability under Noerr-Pennington, the court concluded. After the decision came down, District Attorney Gallegos said he disagreed with the ruling but probably would not seek state Supreme Court review. That does not mean, however, Pacific Lumber is in the clear. In 2007, former CDF Director Richard Wilson and former CDF forestry regulator Chris Maranto filed a whistle-blower lawsuit that alleged a computer model used to support Pacific Lumber's logging plan was intentionally flawed to exaggerate the rate of tree regeneration. In addition, the state Supreme Court currently is considering an environmental group's challenge of the sustained yield plan, the EIR and a habitat conservation plan. That case is Environmental Protection Information Center v. California Department of Forestry and Fire Protection , No. S140547 (see CP&DR Legal Digest , May 2006; Environment Watch , March 2006). That state Supreme Court case has been extensively briefed, but no date for oral argument has been set. The Case: People v. The Pacific Lumber Co. , No. A112028, 2008 DJDAR 361. Filed January 10, 2008. The Lawyers; For the People: Christa McKimmy, Humboldt County district attorney's office, (707) 445-7411. For Pacific Lumber: Edgar Washburn, Morrison & Foerster, (415) 268-7860.

Jerry Brown likes to do the unexpected. So it should not have been surprising that Brown turned up unannounced at the Planning and Conservation League's annual symposium on Saturday, January 12, in Sacramento and vowed to sue cities and counties that do not account for climate change in their next general plan. Brown insisted that the California Environmental Quality Act (CEQA) requires local governments to consider how land-use plans and development projects could contribute to climate change. And he warned that attorneys in his office are reviewing and commenting on environmental impact reports for the plans and projects. "My office is looking, and we're going to send you a comment. And you should look at it or we're going to sue you," Brown said to any local government official who may have been in the audience of about 250 people. The former governor conceded that he could not litigate all of the 120 general plans that currently are in some stage of update or "they'll run me out of town." Rather, he said, "We're looking at people who are flagrant, egregious and vulnerable." Brown was not even listed on the symposium's program. Lunch was billed as a talk about water by PCL Executive Director Gary Patton. Instead, Brown walked into the room just as servers were distributing plates of vegetarian lasagna, and he proceeded to steal the show with his usual mix of bold statements, self-righteousness and self-depreciating humor. Brown made headlines last year when he sued San Bernardino County over that county's failure to adequately address climate change in a comprehensive general plan update. Brown settled the lawsuit months later when the county agreed to adopt a policy that outlines ways to reduce greenhouse gas emissions attributable to discretionary land use decisions, and to prepare a greenhouse gas reduction plan with targets through 2020 and mitigation measures. On Saturday, Brown said his office also is focusing on regional growth blueprints adopted by councils of government. Brown said he has learned that global warming is not at the top of COGs' agendas, but said he believes it should be. These blueprints need to be far more aggressive, and then cities need to implement the plans, he said. The friendly crowd gave Brown a standing ovation for his blunt, rambling and often humorous lunchtime speech. "Every time you applaud, that's one more lawsuit I will file," Brown joked as he left the stage. Of course, there are alternative viewpoints. Unfortunately, not everyone who cheered Brown's speech heard attorney Stephen Kostka, co-author of Practice Under the California Environmental Quality Ac t, provide a counter-argument. During a breakout panel discussion after lunch, Kostka said people expect land use planning to provide more greenhouse gas emission reductions than is likely. For decades, planning and zoning emphasized exclusion, which caused the type of development that people now decry. "I'm not sure how far you can roll the film backwards," Kostka said. It is only an assumption that new development will increase greenhouse gas emissions, said Kostka, who frequently represents the building industry and developers. Most new buildings are far more energy-efficient than old ones, he noted. And, he asked, how do you prove that residents of a new development will drive more than they would have had the development not been built? Kostka conceded that planners must consider the consequences of plans, but he argued that CEQA is the wrong tool for addressing the issue. Land development does not cause greenhouse gas emissions; it's economic growth, population growth and human activity that cause the emissions, he contended. Kostka drew a rebuttal from fellow panel member Terry Roberts, who heads the CEQA clearinghouse in the Governor's Office of Planning and Research. She said the greenhouse gas reduction law passed in 2006 (AB 32) and last year's AB 97 make clear that climate change is a CEQA issue, even if CEQA is not the ideal tool. What's most important is not who's right and who's wrong, but the speed at which climate change has taken over the agenda. Yes, the PCL event was packed with greenies. But not even many of them were talking about this stuff as recently as two or three years ago. Now, it's all that anyone talks about. Concern about climate change is the reason that green building is becoming commonplace. And it's one of the big reasons the post-war suburban growth model is falling out of favor . The conversation has changed. As Jerry Brown noted, Arnold Schwarzenegger has made it permissible even for Republicans to talk about climate change. Planners have a new issue , and this one appears to have all the political traction in the world. - Paul Shigley

In 1909 the City of Los Angeles annexed San Pedro and a narrow corridor connecting the port to downtown. Now the city wishes it had included the industrial land on both sides of the corridor too. Large developable industrial parcels are an endangered species in portions of the City of Los Angeles, and the fact that they are at the bottom of the real estate market food chain makes them a hot commodity for speculative developers in a slumping market. The City of Los Angeles has big plans for its industrial land — but no one can agree on what those plans are. Since Mayor Antonio Villaraigosa issued a directive in December 2005, the Department of Planning and the Community Redevelopment Agency (CRA) have conducted a two-year Industrial Land Use Policy Project (ILUP) and recently released recommendations on what to do with the city's industrial land. Applications for conversions for the large, less-expensive manufacturing parcels through zone changes have inundated the planning department. The mayor and ILUP team are weary of parcel-by-parcel land use decisions that often result in parcels too small to permit companies to re-locate or expand and that create conflicting uses between residents and — oh, say — the cement factory next door. Live-work adaptive reuse conversions in the Toy District and the new Arts District (previously known as the Warehouse District) have spurred internal concern about the eroding industrial base and the permanent loss of jobs. The city needs more middle-class jobs and commercial tax increment and is hoping to attract high-tech and green-tech companies to these parcels in the future. It's a common issue throughout urban California . The ILUP report recommends affirming existing industrial preservation policies and explicitly calls to preserve 80% of industrial land as employment protection districts, while permitting an industrialized version of a mixed-use district on 9%, and transit focused development on another 8%. Many believe the ILUP team's 17% concession isn't enough and a parcel-by-parcel battle over the final categorical geographies could be brewing. If the mayor's team has it way, bygone will be the days of plan amendments and zone changes. The new vehicle of change shall be the community plan process as 12 community plans are being updated now to include the recommendations. The CRA and the Planning Department have devised new zones based on four industrial categories that correspond to a land use inventory and other criteria such as infrastructure and accessibility. The community plan program would implement these zone changes and other ILUP recommendations during the plan updates. The report and recommendations have raised a stir among the development community and some members of the City Council. Some, like the Central City Association, see this process as a crafty method to implement a policy without having to approve it. Not surprisingly, property rights advocates want to build residential and mixed-use on industrial parcels because that's what the market demands. However, very few vacant industrial parcels remain around downtown, in Hollywood and on the Westside; therefore, many companies choose to locate inland and northward up into the San Fernando Valley rather than purchase and recycle an already improved site. The problem with this, according to Steve Andrews, of the CRA, is the migration of centralized industries not only hurts jobs-housing distribution, but also increases distribution costs of some heavy, hard-to-ship manufactured goods such as granite countertops. But perhaps most problematic to the city's plans for industrial preservation is the by-right commercial development on these parcels. On the Westside big-box stores and mini storage companies comprise significant tracts in the "employment protection district." While these retail uses generate more general fund revenue for the city than residential uses, these businesses do not generate the middle class jobs an industrial base provides. Planning says it will make a list of uses not permitted in the new zones. But will the cash cows of big-boxes be blackballed? Only time will tell. The next three years of the community plan program and subsequent plan updates looks to be exciting and emotional, with showdowns between blue-collar companies and residents, between the CRA/Planning team and housing developers, and between the mayor and the council, all over the fate of some of LA's last large parcels. - Aaron Engstrom

Anybody interested in green development, the affect climate change is having on planning, and environmental advocacy should get their fill this Saturday, January 12. That's when the Planning & Conservation League will conduct its annual legislative symposium , an event that starts with breakfast and schmoozing at 8:30 a.m. and doesn't conclude until 12 hours later with dinner and awards. I haven't been to the PCL symposium since 2000, partly because the 40-year-old environmental organization seemed to run out of both energy and political currency. But, for those who haven't noticed, the PCL has roared back to life, maybe stronger than ever. Why? Gary Patton is in charge. A former Santa Cruz County supervisor, former PCL general counsel, and former state and Monterey County smart-growth activist , Patton is a firebrand who accepted the PCL executive director job in 2006. It would be polite to say that he is not universally loved. In fact, he is not loved at all in the development community and by some people in local government. But he's a smart guy with a ton of energy who likes to get in the game. He definitely has returned the PCL to prominence, as the organization is once again a legislative insider. Patton's energy and connections are reflected in the marathon-length symposium scheduled at the Sacramento Convention Center. Lt. Gov. John Garamendi opens the event, and state Sen. Darrell Steinberg provides the evening keynote. In between are panels on, among other things, how land use policies can reduce greenhouse gas emissions , CEQA litigation , and green building . Most panels appear heavily environmental and Democratic, but not all. The development and Republican side of things are represented. I'm not here to flog the PCL or its gathering. But, according to organizers, the event is going to fill to its capacity of 340 people. That kind of interest — on a Saturday, no less — is further evidence that the PCL matters again. - Paul Shigley

Along with the collapse of the housing market, here in California climate change was the biggest land use story of 2007 . But is there any doubt that the greening of the planning process will be the No. 1 story in 2008 – and maybe No. 2 and No. 3 as well? Environmental issues are never far from the forefront of concern in the land use arena, especially here, where the California Environmental Quality Act forces environmental review of everything from huge master-planned communities to tiny infill projects. But climate change is pushing the environment to the front burner in the planning world faster than the you can say Al Gore. Planners are talking a lot about global warming – and, frankly, they're not talking about much of anything else . Local governments with a strong environmental consciousness, like Marin County, are beginning to make environmental sustainability the cornerstone of their planning efforts . But that's just the tip of the quickly melting iceberg. 1. AB 32. land use, and SB 375 The big question in Sacramento this year is whether and how the state will apply AB 32 – the greenhouse gas emissions reduction law – to the land use arena. The Governor's Climate Action Team has said from the beginning that "smart growth" and related concepts will have to account for 10% to15% of required emissions reduction by 2020. As Joan Sollenberger, Caltrans's chief planner, told CP&DR recently , "You can't reduce VMT without addressing the land use question." At the core of the AB 32 land use debate during 2008 is the fate of one bill, SB 375, carried by Darrell Steinberg, a Democratic state senator from Sacramento. The bill came within a whisker of passing last year. At its core, Steinberg's bill uses transportation funding as a big carrot to get local governments to create more efficient land use patterns. Under the bill, regional planning agencies around the state would create "preferred growth scenarios" meeting AB 32 emissions reduction targets and then dole out transportation funds to local governments whose plans and projects conform to those scenarios. Endorsed by environmental lobbyists, SB 375 also contains a wide range of other growth management requirements, such as the identification of permanent open space areas. These heavy ornaments were one of the reasons why this particular Christmas tree didn't get passed during 2007. The legislative debate in 2008 is likely to revolve around SB 375's approach. Will AB 32 drive land use reform – or will it be an excuse to promote longstanding growth management ideas? 3. CEQA and climate change The big news during 2007 was that San Bernardino County reached a settlement with Attorney General Jerry Brown to incorporate climate change considerations into its general plan and future planning efforts. But the big news during 2008 will be how the state will institutionalize climate change as part of CEQA practice. Having just finished a relatively noncontroversial update to the CEQA guidelines, the Governor's Office of Planning and Research is now charged with a new update – one that takes climate change into account in CEQA analysis as required by AB 32. OPR has been mum on the approach so far. But CEQA practitioners face a fundamental challenge in approaching climate change. CEQA is generally designed to make sure the worst thing doesn't happen and by law it can force local governments only to adopt feasible mitigation measures. (This is what the AG's settlement with San Bernardino County calls for.) Yet the mandate of cutting emissions 20% in 12 years will clearly require some actions that would be considered infeasible under current conditions. Just last week, the California Air Pollution Control Officers Association (CAPCOA) issued a lengthy white paper laying out possible methodological approaches to dealing with climate change in CEQA analysis. The core question in the CAPCOA paper is what the threshold for significant impacts should be – the trigger for an environmental impact report. Should it be zero? Should it be some other number? Should there be no threshold? When the goal is to cut emissions rather than limit their growth, what's significant and what isn't? 4. Green building Even while planners debate the land use implications of climate change, developers anad builders are moving much more quickly into the green world. Most local governments don't yet mandate green building practices – and many don't even allow green building as an option. But developers are way ahead on this , claiming that green building adds no more than 2% to the cost of construction and is likely to become standard practice over the next few years no matter what.  But the process for getting a building certified as green by the U.S. Green Building Council isn't easy – and represents of the one major costs of "green building." 5. Stormwater runoff rules There's one more looming giant out there in the world of environmental planning in California, and that's stormwater runoff regulations. Stormwater's a water quality problem, not an air quality problem, but it's also a huge issue that regulators are getting tougher on all the time. Especially in the coastal parts of the California, regional water quality control boards are in the process of implementing new rules that will cost millions – perhaps billions – of dollars to comply with. Local governments keep suing to block these rules, but without much success. Meanwhile, advocates are promoting green ideas like "stormwater gardens" as part of public works projects. It seems likely that, in the long run, local governments in California will find a way to embed "green infrastructure" ideas into both the development review and their capital construction practices. Green land use. Green building. Green infrastructure. Yup, 2008 is going to be the year of environmental issues in planning. What will planners do? As usual, they'll be in the trenches – the policy implementers and technicians trying to make these new directives work. -- Bill Fulton

UCLA Extension's annual Land Use Law & Planning Conference is a leading source of information for attorneys, planners, public officials, consultants, developers, real estate professionals, and others involved in planning and development issues in California. This year's conference presents an update of important new legislation, case law, policies, and trends in the fields of land use and environmental law and planning – presented by several speaker experts. Topics include updates on: planning, zoning and development law; food systems planning; the new storms water quality/MS permits; CEQA 2007; general plans; habitat conservation planning; U.S. and CA supreme courts decisions impacting land use; climate change and land use reform. For more information: Call: 310 825 7885 Online: www.uclaextension.edu/landuse Fees and Credits: Reg # T4721 $350 (if enrollment is received before January 11 2008, $375 thereafter) Minimum Continuing Legal Education (MCLE) 7 hours NEW: Certification Maintenance Credit for APA planners now available

In planning and development these days, everything's green. For years, the issue was housing — specifically prices and the lack of affordable places to live. No more. Now, global climate change is taking over every discussion of land-use planning in California. And climate change – along with a variety of related environmental issues – is likely to take over every issue of California Planning & Development Report from here on out. The current edition of California Planning & Development Report is devoted to all things green in the planning and development world. Turns out, though, that green means different things to different people. To some, it means environmentally conscious construction techniques, such as those embodied in the LEED program . To others, it means "sustainable" (another squishy word) development, and that usually means something other than suburbia . To some, it means additional government mandates and regulations. To others, it means an opportunity to improve how and where we build . All of this is indicative of the fact that we don't yet know how climate change will affect land-use policies and decisions in California. The regulatory framework is barely in its infancy , the case law has yet to be written, and planners admit that they are still casting about. The Schwarzenegger administration and state lawmakers show plenty of willingness to act, though. And did we mention that Attorney General and 2010 gubernatorial frontrunner Jerry Brown has strong opinions on the subject? Many planners appear to be comfortable with the climate change issue's sudden prominence, which is no surprise. Many planners have contended for years that we need to find "greener" methods of development. But, as Bill Fulton writes in our current edition , professional planners are more likely to do the dirty work in the trenches than to carry the climate change flag. 2008 already feels like the year of the never-ending political campaign. Governor Schwarzenegger has declared 2008 the year of education. The state's $14 billion-plus budget deficit suggests 2008 may be the year of budget cuts and tax increases. But 2008 might also be the year that we finally start to wrap our arms around the connections between land use and climate change, and how each affects the other. And that might be just fine. With the housing market in the tank and a general economic malaise slowly spreading, no one is building much of anything right now. It's as good a time as any to revisit our land-use policies and practices. - Paul Shigley

Ask any local government veteran in California what has most hurt their cause and the answer will very likely be Prop 13. Since 1978, the infamous taxpayer revolt and its aftermath has been blamed for every public service woe in the book: closed libraries, lack of police protection, dying street trees, indeed faith in government itself. Yet a growing body of research suggests that per-capita spending by cities in California has not changed from that of pre-Prop 13 years. And nearly all observers of municipal finance agree that spending for police and fire services far surpasses that of the early 1970s. How can this be possible, since cities' primary source of general fund expenditures - property taxes - was severely limited in the complete restructuring that the initiative implemented? For answers, we checked in with Michael Coleman, A policy analyst for the League of California Cities. His data confirms that property tax dropped precipitously. Indeed, inflation-adjusted per capita revenues from property taxes have dropped from $150 in 1978 to about $75 in 1995. But the drop was mostly an instant free-fall: the worst year was actually 1979, right after the revenue pie was re-sliced. In that year, property taxes dropped to only $50 of per capita revenue. Since then, the numbers have ebbed and flowed along with assessed valuations, actually growing to about $105 in 1992. In planning lore, Prop 13 has forced cities to grovel for sales tax revenues, accounting for much hand-ringing about the zero-sum gain of fiscally-based land use decisions. But truth be told, revenues from sales tax are actually lower than in pre-Prop 13 years. In 1978, about $125 of cities' revenue per capita came from sales tax, on average. But in 1995, this figure had declined to only $100. Taxes aside, the total revenue picture hasn't really changed in all of this time. While 1978 was a peak year for per capita revenue for the state's cities ($750 dollars), overall revenues have essentially remained stable. For example, 1975 totals were approximately $630 per capita, as were they in 1994. Special taxes, utility user taxes, and transportation sales taxes pumped the revenue pie back up. So how come libraries are closed and tree wells are paved over? In part, because new police cars and rapidly growing administrative salaries consume a much greater portion of the municipal expenditures, to the detriment of not so fortunate services. According to the Coleman's research, police and fire spending are up an inflation-adjusted 50% since 1976. Meanwhile, parks, libraries, and long-range planning are down. Parks is the most dramatic victim - down 24% since 1976. It's a fair bet that a larger proportion of overall expenditures go to white collar salaries at city hall. In an annual review of public employee salaries conducted by the Vacaville Reporter, Karen Nolan noted that Vacaville's public works director collects a base salary that is 47% higher than 20 years ago - after adjustments for inflation. The city's police chief is an adjusted 24% higher than in 1997. And this is a pattern that is mirrored throughout California. When faced with such data, why is it that Prop 13 stirs such acrimony amongst dedicated public servants? Fred Silva, research director for the San Francisco-based non-profit Public Policy Institute has theory. "There is no city-wideness to fiscal policy anymore," he surmises. The post-Prop. 13 fiscal system offends the public servant's sense of propriety, and complicates the mission to provide for the broader public interest. It's a loss of city wide-ness. But whose public and whose interest? Silva points out that "Prop 13, along with the Coastal Act, were exactly the types of policies that reformist governor Hiram Johnson had in mind when he invented the initiative process in 1910." Prop 13 would have happened with or without Howard Jarvis, because it was a fundamental reaction to a legislative/statehouse impasse in resolving a widely understood problems in the annual property assessment system. So when it comes to local government financing, maybe the question should not so much be "how much?" but "how?" In this 20th anniversary of the passage of Prop 13, let us take comfort in the fact that the blood is still in the turnip. But at the same time, let us pay greater attention to how we slice it.

The City of Wasco in Kern County is trying to stave off municipal bankruptcy as a result of a series of problems with Marks-Roos and other bonds. The possibility of bankruptcy compounds the legal and financial problems facing the city, including a "cease-and-desist" order in May from the U.S. Securities & Exchange Commission which bans the agencies from issuing further bonds. Wasco was one of three California municipalities, including the City of Ione and Nevada County, to consent to the cease-and-desist orders. Both Wasco's financial straits and the SEC order are evidence of the mounting problems stemming from the poor performance of certain Mello-Roos and Marks-Roos bonds, particularly when used to finance speculative real estate projects. The city owes nearly $12 million in both bond payments and legal judgments, although the city's annual budget is only about $8 million, according to the California Debt and Investment Advisory Commission. Many of Wasco's current difficulties center on defaults on bond payments on a golf course in the city. In 1989, Wasco Public Finance Authority spent $8.86 million of bond proceeds to finance the construction of the Valley Rose Golf Course. Under the repayment structure, the bonds were to be repaid by golf course revenues, and the city would make up any shortfall in payments out of the city's general fund. In addition, the city itself leased the golf course from the developer, and attempted to run it as a business. The golf course, however, has never been profitable, and the city is at least $2.75 million in arrears on lease payments. Last November, a Kern County Superior Court judge issued a statement of intended decision that required the city to make the late lease payments, plus interest of 12% annually after November 1997. In the same statement of intended decision, the judge authorized the bond trustee, State Street Bank and Trust Co., to pursue deficiency judgments against the city directly. The judge also approved foreclosure proceedings against the golf course. To date, however, the city has been unable to make any further lease payments on the golf course, according to the Debt and Investment Advisory Commission. A court-appointed receiver is in charge of all golf course revenues. The city, which has gained notoriety in financial circles for both its high debt level and its troubled land-based bonds, is hoping to find a negotiated solution with bond trustees, to avoid filing Chapter 9 bankruptcy. "We have decided not to take that drastic step without evaluating every possible means to avoid it," said contract city attorney Tom McCartney. The city may face a challenge, however, in convincing the bond trustee to renegotiate the level of the bond payments, according to McCartney. He reported that the bond trustee of a golf course in Wasco financed by a Marks-Roos bond, State Street Bank & Trust Company of Boston has indicated ominously that "legally, it cannot compromise the rights of the bond holders. Therefore, as a corollary to that, it cannot compromise the lease obligation," that is, the lease payments that the city is making on the golf course. As a result, he said, "the trustee has taken the position that he will force us into bankruptcy, unless we can compensate the bondholders." The city is currently consulting with financial experts to review its options, according to McCartney. One state official, who asked not to be named, said one possibility for Wasco is an "asset transfer" sale, in which the city sells off a major asset, such as a utility or water company, leases back the services, and uses the sales proceeds to pay off the bond debt. Wasco has both water and sewer districts that could possibly be sold. Wasco has other obligations and judgments, as well. The city has also defaulted on $4 million of industrial development bonds, and may be facing a lawsuit from an attorney the city had hired to sue Richardson and First Capital, who has now sued the city for non-payment. Troubles with Wasco's golf course are part of a larger set of difficulties stemming from land-based bonds underwritten by First California. In February, the U.S. Securities & Exchange Commission charged three California bond issuers with securities fraud. Significantly, all of the securities at issue were Mello-Roos and Marks-Roos bonds underwritten by the San Diego-based firm of First California Capital Markets Group. The federal agency charged the Wasco Public Finance Authority, the City of Ione, and Nevada County with a variety of offenses, centering on failure to make disclosures in official statements about the true nature of the risks entailed in development projects that were to provide the revenue to pay off the bonds. Among the charges: o For a $35 million Marks-Roos bond issued in 1989 by the Wasco Public Finance Authority, the official statement for the offering to investors failed to warn investors that the projects were "highly contingent, if not speculative." o For a $9.07 million bond issued in 1991 by Nevada County to finance the Wildwood Estates residential project, the official statement misrepresented the value of the property, the developer's experience and financial qualifications, and the plan by which the developer intended to finance the project. The developer of the 286-acre project reportedly abandoned the development shortly after receiving the bond proceeds. o For a $14 million Mello-Roos bond issued in 1991 by City of Ione for the Castle Oaks Residential project, which includes a golf course, the official statement misrepresented the developer's ability to complete the project with the bond proceeds alone, the value of the underlying land, and the adequacy of other funding sources to enable the developer to complete the project. Specifically, the statement failed to mention that the project needed $3 million more than the $7.5 million being provided out of the bond proceeds. The securities-fraud charges and the subsequent cease-and-desist order in May were the outgrowths of a two-year investigation by the federal agency into municipal bond fraud. In May, all three municipalities consented to a "cease-and-desist" order from the SEC, which essentially banned those agencies from issuing further securities for the time being. Two other defendants, including Virginia Horler, a Dain Rauscher securities broker who was a financial consultant to Nevada County and William McKay, A real estate appraiser who worked for both Ione and Nevada County, have not settled with the SEC and are scheduled to appear before an administrative law judge in July. Contacts: Tom McCartney, contract city attorney, City of Wasco, (805) 327-4147. Riley Walter, bankruptcy attorney for the City of Wasco, (209) 438-2390.