In an unprecedented effort at regionalism in California, a task force appointed by Gov. Schwarzenegger is attempting to address the many problems troubling the San Joaquin Valley. The governor has assigned no fewer than eight cabinet members to the California Partnership for the San Joaquin Valley, of which Business, Transportation and Housing Secretary Sunne Wright McPeak is the chair. On the partnership’s agenda for the eight-county region are economic development, transportation, land use — especially housing and agriculture, air quality, water, education and workforce development, social services and telecommunications. The group is scheduled to start conducting public forums around the region in March. As a spin-off of the partnership project, the eight councils of government in the San Joaquin Valley have agreed to work together on a land use blueprint. Caltrans announced in late January that it would provide a $2 million grant for the blueprint project. The San Joaquin Valley Air Pollution Control District has offered a $500,000 match. Also, local economic development officials have gone together as a group seeking a $15 million federal grant to address employment issues. “The San Joaquin Valley has some of the biggest challenges in the state,” McPeak said. “We’ve got a region at risk that we need to address.” Nick Bollman, president of the California Center for Regional Leadership, called the effort “very much an experiment in action.” The partnership is both a policy and a program group, and it is unique in state history, said Bollman, who helped put together the governor’s executive order. But whether the partnership forces changes in urban development patterns and the regional economy is uncertain. The basis for the entire project is that “business as usual” is no longer acceptable. In recent years, the San Joaquin Valley has become known as the “Appalachia of the West.” In fact, a report released in December by the Congressional Research Service found that per-capita income in the San Joaquin Valley is lower than in Central Appalachia — while federal spending per capita is greater in Appalachia. Residents in the valley’s eight counties (San Joaquin, Stanislaus, Merced, Madera, Fresno, Kings, Tulare and Kern) are less educated than other Californians. And the valley’s deteriorating air quality is the second worst in the nation. Those problems are compounded by the San Joaquin Valley’s rapid growth. The population is projected to double by 2040. Schwarzenegger created the partnership last summer when he signed an executive order creating the 26-member organization and appointed eight cabinet members, nine local government officials and nine representatives of the private sector. Tulare County Supervisor Connie Conway and Stockton-based developer Fritz Grupe serve as deputy chairs. Since then, the group has met twice, and a number of committee meetings have been conducted. “The basis of the partnership really is economic development,” Conway said. “We’ve been given an opportunity that we have wanted for a long time, so we better make the best of it.” Although the partnership is new, a great deal of background work has already happened. The Modesto-based Great Valley Center has continually pushed public officials, academics and the public to think of the San Joaquin and Sacramento valleys as a regional entity. The Public Policy Institute of California has examined the valley as a region. A federal task force originated by the Clinton Administration continues to address economic development and workforce issues. Four years ago, the Speaker’s Commission on Regionalism recommended formation of a state entity that would focus on the San Joaquin Valley’s needs. The region’s first public research university — UC Merced — opened last fall and has begun a working relationship with the Great Valley Center. “This is a region that has not had resources, that people have not looked at, and that is starting to get a sense of itself,” said Carol Whiteside, the Great Valley Center’s president and founder. “There is a lot of background work going into this and a lot of people working on it.” The partnership’s first two meetings have attracted scores of public officials and members of the public. McPeak said she expects the partnership to produce a very specific action plan. Among the highest priorities, she said, is improving the Highway 99 corridor to meet the needs of the shipping and tourism industries, improve safety and create a high-tech corridor. Additionally, McPeak said the group will probably recommend a set of actions to reduce air pollution and pick a preferred scenario for land use. The action plan should lay out programs for the next five to ten years and contain metrics so that progress may be measured, she said. McPeak endorsed as complementary the regional blueprint project that the councils of government (COGs) have proposed. Air quality, transportation and economic development are regional issues, she said. “I think that it’s remarkable that the San Joaquin Valley as a region has joined forces. There are eight councils of government and they came together and submitted to the state for a grant for a regional blueprint,” McPeak said. “The magnitude of the challenges for economic prosperity in the future transcends jurisdictional boundaries.” Whiteside said she would like the blueprint project to address the questions of whether urban development should move into the foothills, whether development within existing boundaries should become denser, and whether low-density development should continue to swallow farmland. The blueprint project could be similar to recent regional planning projects in Sacramento, the Bay Area, Los Angeles and San Diego. However, at 275 miles in length, the San Joaquin Valley is larger, while the $2.5 million budget is smaller. Moreover, even those involved concede there are huge differences to consider. In the south, Kern County remains dependant on oil, agriculture and mining while at the same time it forges more ties with Los Angeles. In the north, San Joaquin and Stanislaus counties may almost be considered part of the Bay Area. Already, the eight COGs have worked together to implement a valley-wide geographic information system, they have talked about air quality issues, and have addressed both Highway 99 improvements and a proposed high-speed rail line. “We’ve been talking to each other, but we haven’t had this type of comprehensive planning,” said Marjorie Kirn, deputy executive director of the Merced County Association of Governments. The COG leaders are still working on the process. Each COG will receive a portion of the money to fund its own visioning process. Darrel Hildebrand, Kern Council of Governments assistant director, said his agency plans to conduct workshops in nine sub-areas to gather as much public input as possible. After going through their own processes, the COGs will come together and, ideally, endorse a single blueprint for growth, Hildebrand said. Then, it will be up to cities and counties to use the blueprint in making land use decisions. “This will simply act as a vision. The cities and counties will be able to have confidence that it was developed at the grass roots level,” Hildebrand said. Whiteside, a former Modesto mayor and Wilson administration official whose organization provides staff support for partnership committees, said that she actually cares little about the outcome of the partnership effort. What matters most is that people are having the conversation, she said. The partnership “will be successful if in five or ten years the valley is a more livable place and we are approaching parity with the rest of the state,” she said. Otherwise, the valley’s air pollution, congestion, poverty and low educational attainment will continue to be a drain on the state, she said. “Ultimately,” added Bollman, “whether this works depends on changing attitudes in the valley itself.” McPeak said that everyone should be watching. “I think the rest of the state would want to build on this experience in the San Joaquin Valley and have the sort of cooperative relationship with the state that the valley is having,” she said. The executive order signed by Gov. Schwarzenegger assigns the following tasks to the Partnership for the San Joaquin Valley: • Identify projects and programs that will best use public dollars and most quickly improve the economic vitality of the valley, especially projects and programs that leverage federal, state, local and private resources. • Work with members of Congress and other federal officials, including the federal Task Force for the Economic Recovery of the San Joaquin Valley, to gain federal support for projects identified by the partnership. • Work with universities, community colleges, other research and education institutions, and private foundations to provide guidance and encouragement in support of studies of particular interest to the valley. • Review state policies and regulations to ensure they are fair and appropriate for the state’s diverse geographic regions, including the valley, and determine whether alternative approaches can accomplish goals in less costly ways. • Recommend to the governor ways to improve the economic well-being of the valley and residents’ quality of life. • Develop by October 31, 2006, a strategic action proposal that recommends ways to improve economic conditions in the valley. This report must focus on state government strategies for economic growth, improving environmental quality, empowering local communities and encouraging entrepreneurialism. The report is to be delivered to the governor, as well as boards of supervisors and city councils in the valley. Contacts: Sunne Wright McPeak, Secretary of Business, Transportation and Housing, (916) 323-5400. Carol Whiteside, Great Valley Center, (209) 522-5103. Marjorie Kirn, Merced County Association of Governments, (209) 733-3153. Darrel Hildebrand, Kern Council of Governments, (661) 861-2191. Nick Bollman, California Center for Regional Leadership, (415) 445-8975. California Partnership for the San Joaquin Valley website: http://www.bth.ca.gov/capartnership/sanjoaquinvalley.asp

A San Diego historical society’s lawsuit over a housing development on a site the society considered historical has been dismissed by the Fourth District Court of Appeal. The appellate panel upheld a lower court, which dismissed the case because the historical society had neither submitted the administrative record nor filed an opening brief. The lawsuit concerned the fate of four early-20th-Century buildings on J Street in San Diego’s East Village. The buildings were once owned by Lillian Grant, a pioneering black businesswoman and one of the first black women to own property downtown. In 2002, the city’s Historical Resources Board designated the Grant properties as historic. However, the City Council overturned that decision the following year. Soon thereafter, the city approved demolition of the structures and development of the 74-unit Lillian Place Apartments, a low-income project proposed by the nonprofit Wakeland Housing and Development. The Black Historical Society sued the city and Wakeland in March 2004. The society argued that the city failed to implement the city’s California Environmental Quality Act (CEQA) guidelines, that the project violated the city’s development code and that the project improperly used funds from the Horton Plaza redevelopment project. The Society asked the city to prepare the administrative record. The city requested a $2,000 deposit for preparation of the record, but the society refused to pay. On August 24, 2004, San Diego County Superior Court Judge Linda Quinn ordered the parties to meet and confer on three things: the cost of the administrative record, an expedited briefing schedule and whether the society had brought the case under CEQA. On September 2, the city said the administrative record was complete and ready for review. That same day, the court ordered the society to pay for the record’s preparation and file an opening brief by September 21, a deadline the court later extended to October 12, 2004. When the society missed the October deadline, Wakeland asked the court to dismiss the lawsuit. The historical group responded that it had been prevented from filing its opening brief because the city would not provide the administrative record without payment. Quinn dismissed the lawsuit on October 28, 2004, noting that the society had never asked her to modify the September 2 order. Things had proceeded quickly because Wakeland faced the loss of low-income housing tax credits if development did not begin by November 15, 2004. (Wakeland met the deadline, and the project is scheduled to be complete this summer.) The society appealed the dismissal. The group’s opening brief was due in February 2005, but the Fourth District granted an extension because the society said it was in negotiations likely to result in a settlement. However, Wakeland then protested that it was not negotiating and had no intention of settling. So the court rescinded the extension in March 2005 and directed the society to file its brief within five days. The society responded by filing an emergency petition with the California Supreme Court seeking a change of venue. The Supreme Court denied the society’s request, and the group filed its opening brief the next day, April 19, 2005. The society contended that the lower court could not dismiss the lawsuit, that the society had been prevented from filing its Superior Court brief because the city was holding the administrative record hostage, that the record should have been released and that the society had to pay for the record’s preparation only if it lost the lawsuit. The Fourth District quickly disposed of all of the arguments. Usually, there is a 45-day notice period before a court will grant a motion to dismiss. Judge Quinn acted quicker, though, because Wakeland contended it would be harmed if it missed the November 15, 2004 deadline. “ he record contains a showing of immediate harm,” Presiding Justice Judith McConnell wrote for the Fourth District, Division One. “The court was entitled to conclude the construction deadline presented sufficient urgency to support both an expedited briefing schedule and expedited resolution of Wakeland’s motion to dismiss after the society had failed to file the administrative record or to file an opening brief.” As to the society’s contentions regarding the administrative record, the court pointed out that the law generally requires the petitioner — the society in this case — to bear the cost of record preparation. Second, McConnell noted, Judge Quinn made an explicit order for the society to pay, and the society never asked Quinn to release the record without prepayment. Additionally, the society never sought alternative means of obtaining the record, such as preparing the record itself, McConnell wrote. Wakeland asked the Fourth District to sanction the society for filing a frivolous appeal, but the court declined. The Case: , No. D045481, 05 C.D.O.S. 10124, 2005 DJDAR 13820. Filed November 4, 2005. Ordered published December 1, 2005. The Lawyers: For Black Historical Society: Kenneth N. Hamilton, (619) 337-8491. For the city: Deborah M. Smith, city attorney’s office, (619) 533-5500. For Wakeland Housing and Development: Jenny Goodman, Sullivan, Wertz, McDade & Wallace, (619) 233-1888.

The Pleasant Hill Redevelopment Agency’s subsidies for a housing project did not make the project a “public work” that required the payment of prevailing wages to workers, the First District Court of Appeal has ruled. The court based its decision on the definition of “public works” in effect in 1999, when the city and a developer signed a contract. Since then, the Legislature has expanded the definition of public works. The First District’s decision relied largely on the state Supreme Court’s ruling in , (2004) 34 Cal.4th 942 (see , February 2005). In , the Supreme Court ruled that the city’s contribution of $1.5 million to the development of a SPCA animal shelter did not make the shelter project a public work because the money was expressly limited to preconstruction expenses, such as architecture, project management, surveying and legal counsel. Both the Long Beach animal shelter project and the Pleasant Hill housing project were governed by the longstanding definition of public works in former Labor Code § 1720, subdivision (a). Lawmakers changed the statute in 2000 and again in 2001. The Pleasant Hill project involved development of 134 townhouses on the 7.5-acre “Cleaveland Triangle” in the Schoolyard redevelopment project area. In November 1999, the city’s redevelopment agency executed a disposition and development agreement (DDA) with the DeSilva Group, which owned 20 of 29 parcels in the Cleaveland Triangle. DeSilva then assigned its portion of the DDA to Greystone Homes. Under the DDA, the redevelopment agency agreed to provide a parcel it owned worth $161,000, pay a traffic impact mitigation fee of about $209,000, and reimburse the developer up to $2.5 million for land acquisition. The agency would make reimbursement payments out of annual tax increment revenue. In June 2002, trade unions requested a determination from the Department of Industrial Relations (DIR) as to whether the project was a public work. Seven months later, the DIR director determined the project was a public work. He found that the agency’s contribution of the parcel, the payment of mitigation fees and the reimbursements were for “activities integrally connected to the construction of the project,” making it a public work. Greystone appealed, but the director in July 2003 affirmed the determination. Greystone sued, and Contra Costa County Superior Court Judge David Flinn upheld the DIR. Flinn based his decision solely on the DDA’s provision that the redevelopment agency would provide $240,000 of tax increment housing set-aside revenue as incentive for the developer to sell 12 units at less than market rate. Greystone appealed, and a unanimous three-judge panel of the First District, Division Two, overturned the lower court and the DIR. The First District noted that — issued after the DIR and Judge Flinn made their decisions — distinguished preconstruction costs from construction costs under former § 1720, subdivision (a). The DIR determination incorrectly lumped everything together. “The director made the legal determination that payment for construction under former § 1720(a) meant a payment for any activity essential to the completion of a construction project,” Justice Paul Haerle wrote. “This interpretation and application of the governing statute is erroneous under . The court was persuaded that the term ‘construction’ in former § 1720(a) ‘meant only the actual physical act of building the structure,’ and it expressly rejected the DIR’s contrary claim that this term encompassed ‘pre-building’ phases of a project.” Thus, the question in the Pleasant Hill case was whether public funds would pay for actual construction. The court said no. “The real property involved in the parcel conveyance became part of the land upon which the project was built; it was not used to pay the costs of construction. Nor was the traffic mitigation fee a cost of actual construction,” Haerle wrote. “We also find that the agency reimbursement was not used to pay for actual construction of the project in this case. The agency’s express obligation was to reimburse the developer for the costs of acquiring the land.” As to Judge Flinn’s ruling, the court found that payment of money as an incentive was irrelevant. “ he behind a payment of public funds is simply not determinative of whether the funds paid for . Here, the DDA provided that the agency would reimburse the developer for land acquisition costs, not for construction costs,” the court ruled. The Case: , Nos. A107763 and A107769, 05 C.D.O.S. 10773, 2005 DJDAR 14729. Filed November 22, 2005. Ordered published December 21, 2005. The Lawyers: For Greystone: Andrew Sabey, Morrison & Foerster, (925) 295-3300. For Department of Industrial Relations: Christopher Frick, DIR, (415) 703-4240. For Pleasant Hill Redevelopment Agency: Juliet Cox, Richards, Watson & Gershon, (415) 421-8484. For IBEW Local Union No. 302: Scott Kronland, Altshuler, Burzon, Nussbaum, Rubin & Demain, (415) 421-7151.

When the Army closed the doors at Fort Ord in 1994, Monterey County was presented with an unparalleled opportunity to create a new town out of prime real estate overlooking the Pacific Ocean. The 28,000-acre base is nearly the size of San Francisco and is located in an area that has attracted tourists for years. Local leaders, such as U.S. Rep. Sam Farr (D-Carmel), envisioned cutting edge urban planning that would provide affordable housing and walkable communities for the workers who staff much of the county’s tourism and agricultural industries, and who cannot afford to live in some of the state’s most expensive towns. Twelve years later, the big plans for Fort Ord are mostly gone or unrealized. What is slowly taking shape is a typical California beach town revival, with hotels and single-family housing tracts winning out over innovative planning and affordable housing. Some new buildings have sprouted on the base, including part of the campus of 4,000-student California State University Monterey Bay (CSUMB). Much of the open space remains, including beaches that will be opened by the state when it finds the money. Two-thirds of the base’s inland territory will be preserved. “It’s a poster child for success, and a poster child for failure” Farr said of Fort Ord reuse effort. “I think some things have been done very well, and some things done with mediocre vision.” What remains from the old Fort Ord is a significant number of boarded-up buildings awaiting environmental remediation of asbestos and lead paint before the structures can be torn down. Some of the older buildings have been converted into offices and classrooms, but many more stand empty and decaying. It may be another eight to ten years before Fort Ord looks significantly different than it does today. The educational changes on the site of the former base are most noticeable in the new library and sciences building at CSUMB. In addition to CSUMB, the University of California, Santa Cruz, was given 1,100 acres. About half of UC’s land is being used for a research center and for an incubator for new businesses; the other half is being kept as open space. Elsewhere at Fort Ord, Monterey Peninsula College plans to build an emergency training facility that should attract public safety officials from across the state, and Golden Gate University and Monterey College of Law have opened campuses. The most significant changes on the old military base thus far are within the city boundaries of Seaside to the south and Marina to the north. The two former military towns divided 5,200 acres of the base land. Businesses in the cities were hit hard by the closure, and development has tended towards efforts to make the cities some money. Land that the cities received in large part for free from the federal government was sold to housing developers. Sale tax generating activities such as shopping centers are planned for other sites. Marina has already taken over the former airport at the base, while Seaside bought the base’s two golf courses. The first major housing development, Seaside Heights, a 380-unit complex, is built out. Local governments have given approval to several more, including: Marina Heights, with 1,050 units; the University Village project, with more than 1,000 homes; and Seaside Resort, a 330-room hotel on a golf course with time-share units and single family homes. The most unusual proposed development is East Garrison, a 244-acre mixed-use development that is proposed to have 1,400 residential units, a town center and an arts district in about two dozen renovated Army buildings. During World War II, the buildings housed German prisoners of war. The project will be built on unincorporated county land and has been approved the county’s Board of Supervisors. About 20% of the estimated 6,000 units to be built on base land will be affordable. State redevelopment law mandates that 15% of the units be affordable, but supporters of affordable housing had hoped to see as much as 50% of the units earmarked as affordable. Congressman Farr gave up that dream in 2004 when he realized that the Fort Ord Reuse Authority (FORA), made up of local government officials, would not buy into that goal. Farr had hoped that the base would get rebuilt as a model for the rest of the country. Instead, he said, “They’ve approved a bunch of shopping centers and golf courses — what you’re seeing in urban sprawl in the rest of the state.” Farr said that FORA simply went along with whatever local city and county governments decided to do. “The lesson learned here is California needs to really have a vision for the planning of the state,” Farr said, noting the state is one of only a few among industrial states that has no major land use plan, other than coastal zoning. “People need to spend a lot of time on details, particularly here where you had a clean slate with no prior zoning.” One local official sees it differently. “What we have opposition to is our cities are being asked to bear the burden of providing affordable housing for the entire county,” said Lou Dell’Angela, community development director for Seaside. “We are a blue collar town. We are not a Carmel…or Carmel Valley.”’ Dell’Angela said projects like a hotel resort and a proposed regional shopping center on base land will help Seaside get the revenue it needs “to provide services to our residents.” Farr said the most attractive and innovative low-cost housing at the former base is being developed by the military, which is using 44 different architectural styles to create new rental housing. The military, which still uses about 750 acres of Fort Ord, also is building community centers and recreational trails. The housing program is called the Clark Pinnacle Project and was authorized by federal legislation to upgrade military housing nationwide. Under the program, 2,000 housing units will be built for military families in the Monterey area by the year 2013. Many of the residential projects approved on the base did not come without a fight. In November, a lawsuit filed by a citizens group against the City of Marina and the developer over construction of Marina Heights was settled after the developer, Cypress Marina Heights, agreed to pay $1.75 million to support low-cost housing. Contacts: Congressman Sam Farr, (202) 225-2861. Linda Stiehl, Fort Ord Reuse Authority, (831) 883-3672. Lou Dell’Angela, City of Seaside (831) 899-6724.

Making a public park out of a Superfund site is a rarity. If Maywood, a city in the old industrial belt of South Los Angeles County, ultimately succeeds in creating a 7.3-acre park along the Los Angeles River, the result would be inspirational: A working class city will have turned one of the nation’s most contaminated sites into a greenfield. For the time being, however, the proposed conversion of poisoned land to playground looks more like a cruel irony than a cause for celebration. To expunge the witch’s brew of carcinogens and heavy metals in the soil and drinking water, the U.S. Environmental Protection Agency has proposed a technology known as vapor extraction. This method involves heating the soil up to 1200 degrees Fahrenheit, which volatilizes much of the crud into the air. Opponents say the method is inappropriate for a city that already suffers from very poor air quality. With 28,000 people living in a city a square mile in size, Maywood is the most densely populated city in California, according to Trust for Public Land. “Nobody knows what happens when you heat up those chemicals. There’s been no study,” said Councilman-elect Felipe Aguirre, referring to the unique cocktail of chromium, arsenic, THC and vinyl chloride, among the 29 identified “hazmats” in the soil of a former chemical plant, an adhesive factory, and their neighbors. The site ranks high on the list of priority Superfund sites. The issue grew so controversial, in fact, that local voters ousted Mayor Sam Pena in November, electing two anti-vapor extraction candidates — Aguirre and Sergio Calderon — while returning to office incumbent councilman Thomas Martin, another foe of the remediation process. The three councilmen are now the majority of the City Council, and they are looking for ways to convince EPA to use a less hazardous method of remediation. Aguirre said the city was consulting with the National Academy of Sciences to find an alternative technology to clean up the Superfund site. But, he added, “It’s difficult to get EPA to change its mind after it has approved a plan.” “We want a park, but we want the area cleaned up first,” Aguirre said. In questioning the proposed method of remediation, Aguirre cited a clean up project in the nearby city of Alhambra. Under orders from the state Department of Toxic Substance Control, Southern California Edison has attempted to clean up a similarly contaminated site in Alhambra using the same technology proposed for Maywood. “They said it would take six months,” Aguirre said. “It’s taken three years.” To understand why feelings run high in Maywood, one need realize that the Superfund site is only one of several problems that qualify the city as one of the most environmentally messed up areas in Southern California. A short list of existing conditions gives meaning to the word “impacts.” An enormous intermodal shipping container yard, the second largest in Southern California, is located to the north, near Commerce. A Dunn & Edwards paint plant operates across the street from one of the city’s two small parks. An incinerator operates across the city border in Commerce. The 710 Freeway, which carries an endless parade of antiquated, particulate-spewing diesel trucks, is located directly to the east, across the concrete-line Los Angeles River. The city’s aquifers, which are the source of its drinking water, are sullied by a toxic plume. “Maywood is a hotbed of contamination,” concluded Aguirre. Fashioning a new park in Maywood has been a long-time goal of Trust for Public Land, the national organization best known for preserving large wilderness areas. In recent years, the trust has become increasingly active in helping create parks in cramped, inner-city neighborhoods. The Los Angeles River has been a particular focus for the trust. To date, the trust has helped purchase land at three different points along the channelized waterway, according to Larry Kaplan, the trust’s Los Angeles field director. Perhaps the trust’s most remarkable coup came during 2001 with the purchase of 32 acres of former industrial land in downtown Los Angeles known as the Cornfields, which had been targeted for development by the county’s largest developer, Majestic Realty (see , April 2001; , September 2000, January 2000). The environmentalist’s victory was all the more remarkable for defying the wishes of then-Mayor Richard Riordan. In Maywood, the trust conveyed a total of five acres in 2001 and 2003 toward the creation of the future Maywood River Park, while also helping the city and its consultants design the park, according to Kaplan. Both the city and land trust are contributing another stretch of land for what the trust hopes will become a continuous greenbelt extending, in a giant Y shape, south along the riverfront from the San Fernando Valley and Pasadena through some of the poorest cities in Los Angeles County until the river empties into the ocean at the Port of Long Beach. Aside from all of that environmental and political drama, the park itself might seem an anticlimax. In the scheme by AAE Inc. of Brea, the park is designed for active play, while minimizing the space devoted to purely esthetic items like flowerbeds or waterfalls and the like. The majority of the trees are arranged to provide a visual and sound screen from surrounding streets, with a large soccer field and basketball court in the middle, as well a tot lot, riparian areas with native flora and picnic areas. The park does seem low on trees (at least to this landscape non-expert) although existing trees would obviously grow out. The park does not seem to provide anything for skateboarders, which will not prevent skateboarders from rocketing everywhere. In all, the park looks like a very good place to escape the heat-sink of the city. And at a time when so many brownfields are returned to service by being “encapsulated” — that is, paved over — it is good to see a very dirty site returned to grass. If we can accomplish this feat without further searing people’s lungs, all the better.

The environmental impact report for a proposed Highway 50 interchange that would serve an El Dorado County Indian casino has been invalidated by the Third District Court of Appeal. The decision could have impacts beyond El Dorado County because the Third District rejected Caltrans’ usual method of determining air quality impacts. In the EIR, Caltrans had concluded that the interchange and hotel-casino project would not have a significant impact on air quality because emissions were in conformity with the regional “mobile source emissions budget.” Essentially, Caltrans decided that the project would not have a cumulative impact on air quality. However, the court said that Caltrans should have disclosed the amount of reactive organic gases (ROG) and nitrogen oxide (NOx), which are precursors to ozone, that would result from the project itself. “ he specific traffic-based ROG and NOx emissions of the interchange/hotel-casino are known (or have been estimated) but are never disclosed,” Justice Rodney Davis wrote for the unanimous three-judge panel. “ e have no idea (1) what the interchange/hotel-casino’s specific traffic-based ROG and NOx emission (or estimates) are; (2) what their specific contributions to the emissions budgets are; and (3) whether these emissions and contributions are significant (one example of this may be how these emissions and contributions compare to a range of samples from other transportation projects in the region that make up the transportation conformity analysis). This is no small moment, given the enormous size and scope of the interchange/hotel-casino project.” Caltrans officials declined to comment on the ruling, but in court filings, Caltrans essentially argued that it does not have technology to provide the area-specific analysis the court wants. The decision appears to be forcing a change in how any entity that deals with capacity-increasing transportation projects studies air quality impacts. Michael Zischke, an attorney who represented Caltrans in the case, called the air quality ruling “significant” but declined to go into detail pending final disposition of the case. Although the Third District in December rejected requests from all parties for a rehearing, it appeared a request for state Supreme Court review was likely to be filed — and the case might be important enough for the high court to accept. “The court departed from the norm and did not defer to Caltrans’ determination that the air quality analysis was adequate,” Zischke said. The Third District’s decision is only one of the latest events in a long-running fight that El Dorado County and a number of residents have waged against the Shingle Springs Band of Miwok Indians. Since the 1990s, the tribe has sought to build a casino on its 160-acre rancheria in a low-density residential area approximately nine miles west of Placerville. Access to the rancheria, however, is very limited, so the Shingle Springs Band has pressed for a new Highway 50 freeway interchange to serve the site. Eventually, the tribe and its financial backer, Lakes Entertainment of Minnesota, offered to pay for the $40 million interchange. The tribe and Lakes Entertainment propose a 240,000-square-foot casino with multiple restaurants, a five-story, 250-room hotel, and a 3,000-space parking garage. The resort would employ as many as 1,900 people and generate approximately 10,000 car trips per day. The National Indian Gaming Commission and the Bureau of Indian Affairs prepared an environmental assessment (EA) for the project but not a more detailed environmental impact statement (the federal equivalent of an EIR) because the agencies determined the project, with mitigations, would not have a significant impact. The county contested the adequacy of the EA in federal court but lost a January 2005 ruling. That case is now at the Ninth U.S. Circuit Court of Appeals. Caltrans, meanwhile, received the task of preparing an EIR for the interchange project. The study was complicated by the fact that the interchange and casino were really one project, yet the federal agencies with jurisdiction over the casino had already approved the environmental analysis for the hotel, casino and parking garage. Eventually, Caltrans approved the interchange based on a combined EIR/EA that incorporated the federal study. This time, the county and two neighborhood groups sued in state court, arguing that the EIR was deficient in many ways. Sacramento County Superior Court Judge Lloyd Connolly upheld the EIR in all respects — except for its handling of air quality impacts. Connolly ruled that Caltrans must measure the project’s ozone impacts based on state standards, not based on more lenient federal standards. Everyone appealed. The Third District approached the air quality issue differently but reached the same result that Connolly did: Caltrans’ study was inadequate. What’s more, the Third District ruled that Caltrans’ EIR should have analyzed a smaller casino as a project alternative — a contention raised by the neighborhood groups. In studying air quality impacts, Caltrans relied solely on a regional transportation conformity determination. Under the federal Clean Air Act, transportation projects in “nonattainment regions” such as Sacramento must conform to a mobile source emissions budget established in a regional plan for meeting federal air quality standards. Caltrans concluded that the interchange/hotel-casino project would not have a significant impact on air quality because the project’s operation would fall within the mobile source emissions budget. The Third District ruled that Caltrans’ exclusive reliance on conformity with the collective emissions budget was improper. “The regional conformity approach does not tell us what the interchange/hotel-casino project is specifically contributing in terms of ROG and NOx transportation emissions. The ‘forecasts of regional mobile source emission levels’ in this regional conformity approach comprise the ROG and NOx emissions for all existing and planned transportation projects, including the interchange/hotel-casino project, in the Sacramento nonattainment-ozone region,” Justice Davis wrote. “ he EIR in effect used only a cumulative air quality analysis to evaluate project-specific impacts.” As for evaluating project alternatives, the court agreed with neighborhood groups that Caltrans should have considered a smaller hotel and casino. Caltrans rejected such an alternative because the state agency has no jurisdiction over the tribe or its activities on the rancheria. “Caltrans,” the court ruled, “cannot rely solely on this legal blanket to insulate itself from considering the alternative of a smaller hotel and casino. … In short, alternatives may not be rejected for consideration merely because they are beyond an agency’s authority.” Stephan Volker, the neighborhood groups’ attorney, said Caltrans should have considered a smaller casino that generated less traffic. Caltrans does have authority over highway design and congestion, he noted. “Caltrans clearly had the ability to approve a smaller interchange project or could have rejected the project all together,” Volker said. Zischke, Caltrans’ attorney, disputed Volker’s contention and the court’s ruling. “Caltrans doesn’t have authority to order a smaller casino. Caltrans has authority over an interchange,” Zischke said. While pleased with the Third District’s decision regarding alternatives, Volker said the court made a “fundamental error” in permitting Caltrans to rely on the federal EA for examination of off-site impacts of the proposed casino. The “cumulative impacts of the casino outside the rancheria’s boundaries” should have been studied in the EIR, he argued, adding that he hoped the state Supreme Court would consider the question. The Case: , Nos. C046372 and 048141, 05 C.D.O.S. 9666, 2005 DJDAR 13190. Filed November 8, 2005. Modified December 6, 2005 at 2005 DJDAR 14015. The Lawyers: For El Dorado County: Edward Knapp, county counsel’s office, (530) 621-5770. For Caltrans: Michael Zischke, Morrison & Foerster, (415) 268-7000. For Shingle Springs Band of Miwok Indians: Nicholas Yost, Sonnenschein, Nath & Rosenthal, (415) 882-5000. For Voices for Rural Living: Stephan Volker, (510) 496-0600.

The state Supreme Court has rejected most claims of a development company fighting building permit fees in the City of Rancho Cucamonga. However, the court did decide that the builder, Barratt American, could contest the validity of a city fee ordinance adopted in 2002 — a reversal of a lower court ruling. Barratt American, a Carlsbad-based developer and homebuilder, has contested permit and plan check fees in numerous jurisdictions. Barratt argued that Rancho Cucamonga's fees for building permits and plan checks exceeded the cost of providing service, and the builder sought both a refund and a reduction of future fees (see CP&DR Legal Digest , November 2005, July 2003). The trial court and Court of Appeal ruled against Barratt. The state Supreme Court first decided that the fees in question, although authorized by the Mitigation Fee Act, are not "development fees." Therefore, a fee act requirement for refund of excessive fees does not apply, the court ruled. "Barratt challenges only the city's charges for ministerial, regulatory building plan review and construction inspection activities that implement state and local building safety standards," Justice Ming Chin wrote for the unanimous court. The fees "fund a program that supervises how, not whether Barratt may build." Under the Mitigation Fee Act, surplus building inspection and plan check fees must be used to reduce future fees, the court ruled. The court rejected Barratt's arguments that excess fees were illegal special taxes and that the city must provide an annual audit of the fees. However, the court did rule that a validation lawsuit Barratt filed in May 2002 was not barred by the statute of limitations. The lower courts ruled that the city's readoption of fees in January 2002 was not a new legislative enactment because the fees in question were unchanged from fee schedules adopted in 2000 and 1999 — and there is a 120-day statute of limitations for contesting fee ordinances. "Although the amount of the permit and plan review fees remained the same, resolution No. 02-023 changed the duration of the fee by extending its applicability," Chin wrote. "As Barratt points out, if a fee was not challenged at its initial enactment, then the validity of all subsequent reenactments would be immune to judicial challenge or review." The court sent the case back to San Bernardino County Superior Court for consideration of Barratt's validation suit over the 2002 fee ordinance. The Case: Barratt American, Incorporated v. City of Rancho Cucamonga , No. S117590, 2005 DJDAR 14715. Published December 22, 2005. The Lawyers: For Barratt: Walter McNeill, (530) 222-8992. For the city: Tilden Kim, Richards, Watson & Gershon, (213) 626-8484.

People wanting to buy their own place in San Diego for less than $300,000 have essentially one option: apartments that have been converted to condominiums. Owners of approximately 15,000 apartment units have converted them into for-sale condominiums or filed applications for conversions in recent years — making San Diego the hottest market in the state for condo conversions. But things might be about to change. San Diego City Attorney Michael Aguirre advised city planners in November that condo conversions are subject to California Environmental Quality Act (CEQA) review. In December, affordable housing advocates sued the city for not applying CEQA to condo conversion applications. And a state legislator whose district has seen 80% of San Diego’s condo conversions is asking tough questions about the practice. “The big concern is that people are being displaced,” said Tom Scott, executive director of the San Diego Housing Federation. “They can’t afford to buy their rental units, and they don’t have anywhere else to go. We aren’t building any more rental units.” San Diego is not alone. As California’s housing prices have continued into the stratosphere, the importance of condominiums as entry-level, for-sale housing has increased. For a variety of reasons, though, the number of newly constructed condominiums has been relatively low in recent years — making condo conversions an attractive option. The trend actually is a repeat of the past. Condo conversions first became commonplace during the 1980s. Local governments, worried about the loss of rental housing, responded by enacting ordinances limiting conversions. Now, some of those ordinances are getting a fresh look, and other cities are considering new legislation. But not all cities. Some see the transformation of apartments into for-sale units as a form of urban renewal and are encouraging the trend. Over a 17-month period ending in June 2005, the City of San Diego received applications to convert 11,422 rental units, a stunning increase over applications for 2,275 conversions filed from 1999 to January 2004, according to the city attorney’s office. The recent applications amount to 5% of the city’s total rental stock. The city has been processing the conversions under a categorical CEQA exemption for existing facilities, but city planners requested an official opinion from Aguirre. “The categorical exemption for existing facilities,” Aguirre responded, “is not applicable because the change in use from rental to condominium is qualitatively different to warrant environmental review. There are significant adverse impacts and cumulative impacts including displacement impacts to renters, loss of rental and low-income housing, and growth inducing impacts associated with condominium conversions.” Furthermore, Aguirre wrote, the city should require condo conversions to comply with current building, fire and electrical standards. California Environmental Quality Act expert Terry Rivasplata, of Jones & Stokes in Sacramento, said the only way to exempt condo conversions from CEQA is if a city determines that the conversion would result in no physical change to the environment. But, he added, the use does change and with that change may come impacts on things like parking and traffic. For example, a city may require one off-street parking space for an apartment, but two spaces for a condominium, he noted. Those are the sorts of impacts that concern Assemblywoman Lori Saldaña (D-San Diego), who, with Aguirre, convened a public hearing in December that attracted 300 people and lasted three hours. “I’ve seen these development trends come and go for decades,” Saldaña said. “Oftentimes, the ones that seem like a real good idea at the time are detrimental to the community over time.” The same apartment that houses one or two people may become home to a young family with children when turned into a condominium, creating more traffic and increasing the need for public services, Saldaña said. “Entry level housing has a different impact than long-term rental housing,” said Saldaña, a renter herself. At the public hearing, testimony was mixed. Renters told of the hardships they face when their apartments become condominiums. Developers and real estate agents spoke of the opportunities that conversions provide to first-time buyers. Saldaña said she has no interest in carrying legislation on the issue, but said she will urge the new mayor, Jerry Sanders, and city planners to at least slow down the conversions. That appears likely to happen one way or another. Although the Development Services Department questioned Aguirre’s opinion, the groups Affordable Housing Coalition of San Diego and Citizens for Responsible Equitable Environmental Development sued the city in December, challenging the city’s approval of about 50 conversion projects without CEQA review. The groups also have appealed about 100 other conversion approvals. Undoubtedly, requiring CEQA review of condo conversion applications would slow the process. Affordable housing advocates are concerned because, as the Housing Federation’s Scott explained, rents typically are 30% to 50% less than mortgage payments on the same unit. Thus, most renters are forced out, a particular hardship in San Diego, which has a rental vacancy rate of only 3%. An analysis released last fall by Burnham Real Estate confirmed affordable housing advocates’ fears. Burnham reported that only about 5% of residents in converted buildings end up buying a condo in the same complex. “This means the 95% who have to find another place to live are either going to buy a condo in a different complex, or rent another apartment,” Burnham’s Mark Langston said. “Overall, the need for rental housing has not decreased and turnover can provide owners the opportunity to raise rents for new tenants moving in, especially in the lower and middle market sectors.” San Diego does require the payment of three months rent by conversion applicants to low-income renters who are displaced when the vacancy rate is less than 7%. Like many others, the city also imposes its inclusionary housing requirements on conversions. In San Diego, this means at least 10% of converted units must be affordable to people making no more than 150% of median income. In 2004, the California Association of Realtors sponsored a bill (AB 2175, Canciamilla) that would have limited local regulation of condo conversions. The majority of cities have such regulations, according to a bill analysis. An overwhelming number of affordable housing and social service organizations opposed the bill, and it died. Two years later, local regulations appear to be more vigorous than ever. For example, the City of Napa recently revised an ordinance dating from 1987. The old ordinance allowed a limited number of conversions if vacancy rates were 3% to 5%, and unlimited conversions if the vacancy rate were more than 5%. The revised ordinance permits some conversions only if the vacancy rate is at least 5%, Senior Planner Jean Hasser explained. Under the regulation, property owners may convert half the number of multi-family units built the previous year, or the number of units equal to the difference between a 5% vacancy rate and the current vacancy rate. Vacancies now stand at 5.6%. The 0.6% difference equates to 48 units, she said. The city has received two applications for the conversion of a total of 80 units, so for the first time Napa will have competition for the use permits. While Napa was amending its rules, the City of Dublin was adopting its first ordinance. That city now permits the conversion of no more than 7% of apartments in any one year, and the City Council made clear that figure could change over time. Still, some cities would like to trade some apartments for condominiums. For example, the City of El Cajon since 2002 has waived off-street parking requirements for conversions, and the city no longer requires separate water meters for condominiums. The majority of housing units in El Cajon are apartments, and city officials see the conversions as a way to increase home ownership, leading to long-term neighborhood improvement. Contacts: Jean Hasser, City of Napa, (707) 257-9530. Tom Scott, San Diego Housing Federation, (619) 239-6693. Assemblywoman Lori Saldaña, (619) 645-3090. Terry Rivasplata, Jones & Stokes, (916) 737-3000. San Diego City Attorney’s opinion: http://genesis.sannet.gov/infospc/templates/attorney/law_mol.jsp

A nonprofit corporation created by the City of San Diego to carry out downtown redevelopment may not meet in closed session with legal counsel for the city’s redevelopment agency, the Fourth District Court of Appeal has ruled. The ruling may not have widespread implications because San Diego’s system is uncommon; however, the ruling definitely could affect how San Diego does business. City Attorney Michael Aguirre, who was elected after the litigation at hand commenced, praised the court’s decision — even though his office lost the case. An outspoken advocate of open government, Aguirre told the that the decision “strengthens my hand in advising the city in the future.” The city created the Centre City Development Corporation (CCDC) in 1975 to provide redevelopment services to the Redevelopment Agency of the City of San Diego. The city is the sole member of the CCDC and appoints the board. Among the CCDC’s tasks are land acquisition and proceedings related to eminent domain filings. Although only the redevelopment agency is empowered to conduct condemnation actions, the CCDC is responsible for obtaining appraisals and negotiating with the owners of condemned properties. While trying to settle eminent domain cases, the CCDC Board of Directors has conferred with a law firm hired by the redevelopment agency to handle the eminent domain lawsuits. These meetings have occurred in closed session, pursuant to Government Code § 54956.9, a section of the state’s open meeting law, known as the Brown Act. Melvin Shapiro, a San Diego civic watchdog, sued. Several years ago, Shapiro won a Brown Act case against the San Diego City Council regarding closed door meetings for the downtown baseball stadium and related projects. In , (2002) 96 Cal.App4th 904, (see , May 2002), the court ruled that the council’s agenda descriptions of closed door negotiations were too general and some topics should have been discussed in public. In his lawsuit over the CCDC meetings, Shapiro argued that because CCDC is not a party to the eminent domain litigation, it must meet with the redevelopment agency’s counsel in open session. San Diego County Superior Court Judge Richard Strauss ruled against Shapiro. Shapiro appealed and a unanimous three-judge panel of the Fourth District overturned the lower court. Section 54956.9 provides a “pending litigation” exception to the Brown Act’s mandate that local government agencies convene in public. The statute defines “pending litigation” as litigation “to which the local agency is a party.” The CCDC and redevelopment agency argued that because CCDC is an agent of the redevelopment agency, it has the same right as the agency to discuss eminent domain litigation in closed session. That might be true if the normal attorney-client privilege applied. However, the court ruled, “according to the clear terms of § 54956.9, the general rules of attorney-client privilege do not apply to determine whether a meeting with legal counsel may be held in closed session. Instead a legislative body of a local agency is permitted to hold closed-session meetings with counsel to discuss pending litigation only as permitted by the terms of § 54956.9.” The statute, the court continued, has no provision for the legislative body of one agency to meet in closed session with the legal counsel of another agency. The CCDC leaned heavily on a 1984 opinion of the state attorney general (67 Ops.Cal.Atty.Gen. 111) that concluded an airport commission created by a board of supervisors may meet in closed session with county counsel about airport-related litigation in which the board of supervisors is a defendant. However, the court determined this opinion was irrelevant because the Legislature amended the key Brown Act provisions three years after the attorney general released the opinion. The Case: , No. D045506, 05 C.D.O.S. 9899, 2005 DJDAR 13150. Filed November 22, 2005. The Lawyers: For Shapiro: Charles Wolfinger, (858) 272-8115. For CCDC: Helen Holmes Peak, Lounsbery, Ferguson, Altona & Peak, (760) 743-1201. For the San Diego City Council: Claudia Gacitua Silva, city attorney’s office, (619) 533-5800.

I am writing to comment on “North Natomas: Cutting Edge or Only More of the Same?” ( , October 2005), an article that expressed several concerns about development in the North Natomas area of Sacramento. The article highlights the diligent efforts of collaborative working groups in the 1990s to create the North Natomas Community Plan, “a ‘smart growth’ plan before there was such a term.” The “smart-growth” concept encompasses many amenities, including a transit-oriented system of neighborhoods, with roads and pedestrian and cycling routes, parks, open space, schools, and access to the proposed Downtown-Natomas-Airport (DNA) light rail line. However, the article expresses concerns regarding whether development is following that plan, and, in particular, voices concerns about the proposed Greenbriar project. Greenbriar, however, is a logical development project that reflects these exact “smart growth” principles and should have been included in the North Natomas Community Plan from the beginning for several reasons. First, the map used in the article does not show the Greenbriar project location and thus does not fully reflect that the project is surrounded on three sides by development. Greenbriar is situated adjacent to Metro Air Park between Interstate 5 and Highway 99 and is essentially a “notch” in the existing plan. Greenbriar is designed as a pedestrian-friendly and transit-oriented infill project on the proposed DNA line, a perfect opportunity for a creative infill, “smart-growth,” project. In fact, Sacramento Regional Transit (RT) supports the Greenbriar project. At the August 3, 2005, Local Agency Formation Commission meeting, Dr. Beverly Scott, CEO/general manager of Sacramento RT, testified to RT’s “strong support” of the annexation of the Greenbriar project into the City of Sacramento. Dr. Scott testified that the “project is not just an assemblage of a lot of good elements. think that . . . really tries to create an overall environment that is transit supportive.” During the design process of this project, the planners incorporated the seven growth principles established by the Sacramento Area Council of Government’s (SACOG) Blueprint process: transportation choices, mixed-use development, compact development, housing choice/diversity, use of existing assets, quality design, and natural resources conservation. The result of these considerations is a project with many housing options for residents employed in the metro Sacramento area that incorporates easily accessible public transportation with sidewalks and green space for pedestrians and cyclists in a vital, mixed-use neighborhood set in a beautiful tree-lined community. Indeed, SACOG also testified before the Local Agency Formation Commission in support of the Greenbriar project. Moreover, Greenbriar will significantly enhance the financial viability of the proposed DNA line. The DNA line will expand transit service from downtown Sacramento and the airport and promote patterns of smart growth while minimizing environmental impacts, but the process of obtaining federal funding for light rail transit (LRT) projects is extremely competitive. The higher the ridership, the more cost effective, and therefore competitive, the LRT project. Greenbriar will generate an estimated 1,162 daily riders, thereby making the DNA significantly more viable for federal funding. According to Dr. Beverly Scott, the Greenbriar station’s 1,162 boardings would put the station within RT’s top quarter in terms of transit utilization. Oddly, the Environmental Council of Sacramento and Sierra Club are quoted in the article as opposing the extension of the LRT line to the airport. Finally, the article's supposition that developers are not willing to build at higher densities is not accurate. The article states, quoting Randy Pestor, a former member of the Natomas Community Association's planning committee, that “ t's been a real effort to get developers to build at a higher density. They come in with proposals at densities well below the community plan, and we have had to consistently push for higher densities.” For developers, however, this has not been the case. Several recent projects in the North (and South) Natomas area have attempted to incorporate higher densities, but neighbors have adamantly opposed these developments. In many instances where projects have proposed higher densities, several neighbors and homeowners associations have attended Planning Commission and City Council meetings to voice their opposition to medium or high densities. Developers of these projects, however, steadfastly supported higher densities, and as a result there are several higher density developments in the Natomas area, between 10-20 dwelling units per acre, that are consistent with the North Natomas Community Plan. Greenbriar is proposing higher densities; it is the kind of development that Mr. Pestor wants to see. Tina A. Thomas, counsel for AKT Development

It has now been two years since Arnold Schwarzenegger was elected governor of California under perhaps the most peculiar circumstances in American history. His political stock has been dropping rapidly for almost a year, culminating in his across-the-board loss in the November special election on which he had laid all his political chips. Having appropriated the pro-business agenda in 2005, the governor appears to be veering back toward the middle in hopes of getting re-elected in 2006. This is the standard political line on Schwarzenegger these days. Is it also the line on planning and development? It’s hard to say. Although Schwarzenegger appointed some ardent environmentalists and Democrats to high positions at first, his approach to planning and development has been pretty much the same as his approach to everything else: Take the pro-business position and try to sell it as needed reform. Within the Schwarzenegger administration, the planning and development issue has largely boiled down to housing. Business, Transportation, and Housing Secretary Sunne Wright McPeak is one of the strongest personalities in the Cabinet. For two years, McPeak has traveled the state promoting two basic ideas: first, requiring cities to provide a 20-year land supply for development; and second, a “take care of your own” housing requirement. Her basic message is that the state must plan for housing more aggressively and on a more long-term basis. McPeak has failed over and over again to get housing – or any other planning issue – on Schwarzenegger’s short list. But she apparently sees an opportunity in Schwarzenegger’s special election miseries. Ever since it became apparent, earlier this fall, that the special election would go down in flames, McPeak’s office has been ramping things up – in particular, by having meetings of a wide-ranging Housing, Land Use, and CEQA Task Force every two weeks. You would think McPeak’s strategy has a chance of working. After all, what else does Schwarzenegger have to run on? Every other pending pro-business issue was either resolved in 2004 or shot to pieces in 2005. But the average home price in the state is now ten times annual household income; a huge percentage of new mortgages are adjustable interest-only loans; and interest rates are going up. On the other hand, the housing market started cooling during August, and prices have now leveled off after tripling in seven years. So the problem as the public perceives it could easily flip from high housing prices and a shortage of supply to overleveraged homeowners. Furthermore, Schwarzenegger’s director of the Department of Housing and Community Development, Lucetta Dunn, quit right before the election, after less than a year and a half on the job, and the administration appears to be in no hurry to replace her. McPeak is a powerhouse who essentially serves as her own housing director; nevertheless, purely in public relations terms, how can you short-list housing as an issue when you don’t even have somebody warming the chair at the Department of and Community Development? Then there’s the question of how the Democrats will play the planning issue this year, especially in the governor’s race. It has been 16 years and three governors since growth was an issue in a gubernatorial election. The leading Democratic contender, Treasurer Phil Angelides, is a rabid partisan with strong ties to the labor unions, but he’s also the darling of the national smart growth crowd, with a long record of rhetoric in favor of infill development, mixed-use growth, and New Urbanism. (Angelides was the developer of Laguna West in Elk Grove, one of the first New Urbanist suburbs in the state.) The other leading Democratic candidate, Controller Steve Westly, is less well-known on the topic. But Westly is a former local economic development official and he comes from Silicon Valley, where infill has been the order of the day, so you could make some assumptions about his disposition on planning. One could imagine an interesting debate over housing and growth during the governor’s race this year. Schwarzenegger could be expected to take the pro-homebuilder position, adopting the McPeak argument that some infill is necessary, but some greenfield development is required as well. Angelides (or Westly) could be expected to take a hard-line smart growth position, arguing in favor of an aggressive infill strategy throughout the state. Of course, if Schwarzenegger moves back to the middle in 2006, he will have to court environmentalists – perhaps his most logical Democratic constituency. That would mean he’d have to tone down the rhetoric on greenfield development. The Democratic candidate could get trapped between the pro-CEQA position of the environmentalist constituency and the pro-infill housing position of the urban Latino constituency. Add up all of this, and the housing issue might become moot. A more likely scenario is that planning squirrels its way into the governor’s race by way of the infrastructure bond. It’s likely that some kind of infrastructure bond of $50 billion to $100 billion will receive bipartisan support in Sacramento and find its way onto the November ballot, meaning that both sides will be jockeying to spin it their way. Schwarzenegger will focus on the road-building benefits to suburban Republican constituencies, while the Democrat – especially if it’s Angelides – will undoubtedly use it rhetorically as a way to support a wide-ranging infill and smart growth agenda. In December, Angelides appeared to be staking a position on every side of an infrastructure bond. Last year, I wrote a column stating that the stars could be aligning in Sacramento on certain types of planning and housing reform (see , January 2005). Schwarzenegger seemed to be positioning himself on the issue, and McPeak – a Democrat – was close to certain key Democratic legislators. The whole special election debacle made for a lost year in Sacramento, blowing all of those stars out of the sky. But between housing prices and traffic congestion, some aspect of planning is still on everybody’s mind during 2006. McPeak may not put housing on the governor’s short list, but planning may find its way into the gubernatorial debate one way or another.

The First District Court of Appeal has rejected a property owner’s claim that an Alameda County ballot measure rendered any application for development futile and, therefore, effected an unconstitutional taking. The property owner has not submitted a development application to the county since Alameda County voters approved Measure D in November 2000, the court noted. And without the county’s “elucidation of the precise extent of the regulation,” the First District ruled, “a court simply cannot decide whether Measure D has effected a regulatory taking.” Measure D was a complex initiative backed by the Sierra Club. It established urban growth boundaries in portions of the county and imposed a number of restrictions to protect agricultural land and open space (see December 2000, October 2000). San Leandro Rock owns 58 acres off Lake Chabot Road where the company operated a quarry for almost a century until 1986, when a use permit expired. During this litigation, company co-owner Robert E. Lee filed a declaration stating that the county told him the property, although zoned agricultural, would be suitable for a residential subdivision, and Lee apparently explored the possibility with developers during the 1990s. In 1994, the county approved a conditional use permit for a golf driving range on the property. Measure D rezoned the property from agricultural to resource management, a designation that permits agriculture and grazing, recreational and environmental uses, certain quarries, and very low-density residential development. Only voters may change the land use designation. In November 2002, San Leandro Rock filed an inverse condemnation complaint arguing that Measure D constituted a taking under the federal and state constitutions. The property owner argued that it was excused from the usual requirement of having to file a development application because Measure D made clear that any application would be futile. Alameda County Superior Court Judge Steven Brick rejected the county’s motion for summary judgment. Judge Brick ruled in March 2005 that the county had not disproved San Leandro Rock’s contentions that none of the permitted uses of the property was viable, that no land use agency could permit any economically viable uses, and that all permissible uses were known. The county appealed, and the First District, Division Five, disagreed with the lower court. The First District panel pointed to its own decision in , (2003) 110 Cal.App.4th 1246 (see , September 2003), in which the court ruled that a property owner’s “as applied” challenge to Measure D was not ripe for a judicial decision because the property owner had not submitted a development application. The three-judge appellate panel directed Brick to defend his decision. Brick responded that the decision did not apply because it was undisputed in the record that the only economically viable use of San Leandro Rock’s property was a residential subdivision, and because the normal application process “cannot result in any variance or exemption from the strict limitations of Measure D.” The appellate court, however, was not persuaded by the record or by Brick’s reasoning. “ nder both federal and California law, before a plaintiff may establish a regulatory taking, it must first demonstrate that it has received a final decision from the land use authority regarding application of the challenged land use regulation to its property,” Justice Linda Gemello wrote for the court. Federal and state law does provide a “futility exception,” though, and it was the basis for San Leandro Rock’s lawsuit. The company argued that Measure D left the county without discretion to permit any economically viable use of the property — an argument the First District rejected, citing numerous cases, including , (1998) 62 Cal.App.4th 108 (see , April 1998). “In , this Division stated that ‘the futility exception … relieves a developer from submitting’ multiple applications when the manner in which the first application was rejected makes it clear that no project will be approved,” Gemello wrote. “San Leandro Rock cannot claim the exception because it has not satisfied the requirement imposed by California case law that it first submit a development proposal.” “Courts require taking claimants to resort first to administrative procedures to give the implementing agency ‘the opportunity … to decide and explain the reach of the challenged regulation,’” Gemello wrote, citing , (2001) 533 U.S. 606 (see , August 2001). “Here, the county has not had the opportunity to explain the reach of the challenged regulation, and we are not persuaded that all permissible uses of the property are in fact known. Although Measure D restricts the permissible uses of the property, it allows certain general categories of uses, such as recreational and agricultural uses, as well as others.” Both Judge Brick and San Leandro Rock relied heavily on Lee’s declaration regarding permissible uses that are economically viable. The First District, however, refused to give such weight to Lee’s statement because doing so would require speculation. “Because the county had not had ‘the opportunity to exercise its full discretion in considering the landowner’s plans for the property in light of the measure,’ the takings claim was not ripe,” Gemello wrote, again citing . The Case: , No. A109576, 05 C.D.O.S. 9136, 2005 DJDAR 12439. Filed October 18, 2005. The Lawyers: For the county: Richard Winnie, county counsel , (510) 272-6700. For San Leandro Rock: James Whitaker, (415) 789-9720.