Just to clarify: the City of Milpitas lies inside the County of Santa Clara. Judging by their respective interpretations of redevelopment law, however, they might as well be on separate planets. Having had considerable success using redevelopment project areas and their tax increments to revive moribund industrial sites throughout the city, Milpitas is poised to extend the life of two existing project areas while adding a brand-new project area of roughly 600 acres in the central part of the city, between the 680 and 880 freeways. The plan amendments would increase combined limit on tax increment collection from $2.4 billion to $6.7 billion, and they envision capital improvements for the areas costing up to $1.4 billion. In 2003 Milpitas adopted an aggressive specific plan to increase density in a redevelopment area in the heart of the city, in part through infrastructure improvements, and it may have similar designs on the proposed addition (see CP&DR Local Watch Vol. 18, No. 11 Nov. 2003). The Milpitas City Council, acting as the city's redevelopment agency, voted unanimously April 20 to approve the project area amendments and addition, and it is expected to confirm its decision when the amendment is read the second time, on May 4. After that, the County of Santa Clara will decide whether to sue to stop the amendments. "The redevelopment law has been beefed up to contain a more rigorous definition of blight," said Lizanne Reynolds, deputy counsel for the County of Santa Clara. "We don't believe that they've shown this blight." According to city officials, the amendment and especially the addition are sorely needed if the city is to transform deteriorated, under-performing swaths of small, obsolete industrial and high-tech sites – thriving in the age of floppy disks but obsolete today – and unkempt, overcrowded residential areas. Conditions qualifying as economic and physical blight have been extensively documented, say those officials. "The goal in this particular area is that we have a huge swath of land that is underutilized and in some cases is not utilized at all anymore, with deteriorating buildings most of them old high-tech buildings that were built in the '70s and '80s that no longer are very marketable," said Milpitas Mayor Bob Livengood. Consultants Keyser-Marston Associates conducted a redevelopment analysis for the city that included the following conclusions: •Of the 26 industrial parcels, the average parcel size was approximately 4.5 acres with 13 under three acres. •A typical manufacturing/assembly facility requires a building size of 25,000 square feet, which would require a parcel size of 75,000 square feet (1.7 acres). Seven of the 26 properties cited are less than 1.7 acres. •Based on these assumptions, the minimum desired lot size is approximately 10 acres. •62 percent of the parcels in the Added Area are blighted. •Approximately 41 percent of the parcels in the Added Area are within the 100-year floodplain. Santa Clara County, however, has indicated that these claims matter little in the eyes of current redevelopment law. Over the life of the project areas, the county and the Milpitas Unified School District stand to lose an estimated net of $344 million and $1.23 billion, respectively, through tax money that would be diverted away from the county and reinvested in the project areas. County attorneys county contend that the city has exaggerated the extent and severity of the alleged blight in the plan area addition, which must meet a more narrow threshold set by SB 1206, enacted in 2007. "The redevelopment law has been beefed up to contain a more rigorous definition of blight," said Reynolds. "We don't believe that they've shown this blight." "Just like everybody else, the rates are higher because of the economy," said Marie Munson, managing consultant with of Seifel Consulting, which analyzed Milpitas' amendments and reports on behalf of the county. "We didn't see physical blighting conditions in those areas that were causing higher vacancy rates or lower lease rates." Based on these discrepancies, the county has threatened to file a lawsuit if the plan area addition and/or amendments are enacted. "We have not discussed this issue in closed session with our board yet, but we will be doing so," said Reynolds. Seifel conducted a "windshield study" as well as an analysis of Milpitas' own documentation, which concluded that many of the conditions cited by Milpitas could potentially lead to blight but did not constitute blight in and of themselves. The county rejected contentions about lease rates and vacancy rates, noting that neither deviated significantly from comparable areas in the county. It also contends that hazardous waste, while extant, does not necessarily preclude optimal use of the affected properties. Milpitas officials believe that this analysis underestimates the extent of the area's blight. "They drive through and see that there are companies there – and there are companies there," said Diana Barnhart, Milpitas Redevelopment and Economic Development manager. "But what they don't see is that in one building there might be 150,000 square feet of which a third of it is for a company and the rest has been vacant for 24 months or 5 years." The county took issue with smaller, less typical claims as well, including one that suggests that the presence of a private school and churches may indicate economic blight because landlords are renting to traditionally low-rent tenant. According to the county's April 20 report, "the assertion that parcels are ‘blighted' because they are being used by churches and a private school strains credulity." Siefel's report describes a relatively small block of the addition that may meet the threshold for blight; it is dwarfed by rest of the proposed area by a factor of ten. The county also questioned the implication that parcels in danger of a 100-year flood necessarily qualify as blighted. None of this criticism, however, has compelled the city to alter its redevelopment plan, which, so city officials claim, will eventually benefit city and county alike. "I think the county is just wrong," said Livengood. "I don't know why they're even bothering to oppose us in this." "If you want to wait for market forces, good luck," added Livengood. "You could be 10 or 15 years down the road with the same situation we have right now." The Milpitas Chamber of Commerce has not taken a position on the plan amendments, according to Frank De Smidt, chair of the chamber's Government Affairs Committee. The city instead has pressed onward, without altering the plan even after receiving comments from the county on April 4 and again on April 20. Those comments contend that the city's response to its concerns were inadequate and do not meet the requirements of the CRL or the California Environmental Quality Act. In its April 20 letter, the county contended that the city's "responses contain conclusory statements unsupported by factual information." Having used redevelopment funding to transform a shuttered Ford Motor plant into the Bay Area's largest indoor shopping center, the Great Mall, and to attract Cisco's corporate campus the city has historically enjoyed success with redevelopment. Barnhart, however, contends that the county has been reluctant to embrace redevelopment in the past. "The county has challenged just about every city's desire for redevelopment for the last 25 years," said Barnhart. "I don't think the county gives redevelopment any credit for development, growth, and activity. I think there's this presumption that the private market will do it on its own without redevelopment assistance." Reynolds insists, however, that the county has supported numerous redevelopment areas but that this one happens not to qualify under SB 1206 or justify the county's loss of revenue – no matter how much the revitalized areas might generate. "There are many cities in the county that have adopted and/or amended their redevelopment plans over the years and the County has not challenged them," said Reynolds. The city has not yet released a plan for the new and amended project areas but has indicated that it intends to promote the assembly of parcels and try to attract modern manufacturing and warehousing facilities, which according to current models require far more land than did the facilities that currently occupy the parcels. While the county's analysis concedes that some parts of the project amendment areas and additions may not be performing well enough to attract new, higher-paying tenants, the county noted that "'lack of investment and development potential' does not correlate with impairment of the physical development of the parcels." The county further concluded that the city's report "appears to cherry-pick the indicators that show lower property values in the Added Area in comparison of the rest of the City" and, on the count of over crowding, that the city's finding of 1.33 and 1.43 persons per room constitutes "overcrowding but not serious overcrowding, defined by the Census as 1.5 per room." This month's exchanges between the city and the county has resulted in virtually no concessions or agreements, and all indications are that the Milpitas City Council will in fact give the amendments final approval. "It's passed through the City Council unanimously so far," said Livengood. "I see nothing that would prevent us from moving forward." If this impasse continues, and leads to the threat of legal action, it would not be unheard-of, especially in the absence of an official system of mediation when such disputes arise. "You would hope the agency would spend time with county officials even before they start the process," said John Shirey, executive director of the California Redevelopment Association. "It is increasingly rare that there would actually be a lawsuit filed by the county. Typically these things do get worked out." For now, the city is waiting for the county to be the one to budge. "The county is broke," said Livengood. "Why they would want to spend a bunch of taxpayers' money suing us over what I consider trivial matters, you'll have to ask them that." Contacts: Bob Livengood, Mayor of Milpitas, (408) 586-3051 Lizanne Reynolds, County of Santa Clara Deputy Council, (408) 491-4200 Diana Barnhart, Milpitas Development & Economic Development Manager (408) 586-3059 Marie Munson, Seifel Consulting , (415) 618-0700

Though the economic prosperity and real estate boom of the past decade may seem like a distant memory, it wasn't more than two or three years ago that planning departments around the state were buried in paperwork. From sprawling subdivisions to loft renovations, developers sent them all the work they could handle. Some planning agencies even complained that attention to case processing prevented them from actually planning. Today, planning departments are as overburdened as ever, but for completely different reasons. Though the downturn in the economy has put fewer permits and entitlements across the counter at city planning departments, layoffs and staff reductions have resulted in more work for fewer people. Big cities have eliminated the equivalent of entire small-city departments. San Jose's planning department underwent three rounds of layoffs in 2009. Riverside County is cutting 25 percent of its planning department capacity. San Francisco has cut its staff time down to 37.5 hours per week. Fresno has seen 40 positions eliminated. To help close a $485 million city deficit, the Los Angeles Department of City Planning, once with a staff of over 1,000, has had to reduce its planning capacity by 40 percent. Some departments have responded by changing the way their planners work, while others have sought new sources of revenue. More often, however, it's been a combination of attempts to try to get the work of the planning department done. During this unprecedented period, some agencies have made some tweaks and stopgap measures while others are hanging on for dear life. Cross-Training Just as much of the state's fiscal pain has been centered in the state capital, the City of Sacramento Planning Department has also suffered its share of cuts. But the situation has compelled the department to look internally to achieve greater efficiency. "We used to be able to do 20 things at one time," said David Kwong, planning director for the City of Sacramento. "We can only do 15 now." Kwong said his department gets about 35-40 percent of its budget from the city's general fund, and the rest from revenue. He said about twenty positions have been eliminated, though fix or six were already vacant. That's brought his department down to 37 planners. "Some programs, admittedly, will have to take the back burner and take longer to do, as well as some programs being eliminated entirely," Kwong said. Though the work has slowed, it hasn't stopped completely. Kwong said permit applications are down from about 18,000 a year, to roughly 13,000. To handle the work with fewer planners, the planners under Kwong are now cross-trained in a variety of tasks and skill sets, allowing them to do a greater variety of work. "As the projects have faded with the economy, we saw a big need to change internally," Kwong said. "We couldn't just have one type of planner, per se. We had to have planners that were more versatile." That means long-term planners can now sometimes be found processing requests at the planning counter or helping with zoning administration. Kwong said there was some initial resistance to the changes within the department, but planners have now mostly gotten used to their new responsibilities. ARRA To The Rescue In Fresno, planners are facing a similar challenge. Over the past year, the city's planning department has been forced to cut about 40 positions, bringing its staff from about 220 people to roughly 180. But things could have been worse. Planning Director John Dugan said his department was able to save about 14 positions through a well-timed grant application. The city secured some American Recovery and Reinvestment Act block grant funds from the Department of Energy, which it split between energy auditing and a continuation of long-range planning programs. "It was a very creative response to take advantage of the energy grant, which allowed for new local development regulations that resulted in energy conservations, but also avoided the layoff of some of the planning staff," said Dugan. However, the structural issue in Fresno – as elsewhere – is that development is down. Revenues have been dropping about 10 percent each year for the past few years, said Dugan. When he looks back three or four years, there's more than a 40 percent decline. And because most of the city's planning program is funded by development application fees, the decline in building has had a huge impact. "When the fees tanked, all of the revenues that ran the planning department went with them," Dugan said. The budget for city's next fiscal year includes some extra contributions from the general fund to make up for the shortfall from the department's enterprise fund. Dugan sees a turnaround on the way, however. Fresno has historically grown by about 10,000 people per year, according to Dugan, and that growth creates a demand for about 3,000 new housing units. But the supply hasn't matched that demographic increase in recent years. "There's been a big pent-up demand as the new construction tapered off to the hundreds instead of thousands per year," said Dugan. "That's going to be breaking through pretty soon as financing opens up." Silo-Busting In L.A. In Los Angeles, fee increases have been the cornerstone of the planning department's attempts to survive the recession and massive citywide cuts in personnel. After implementing two fee increases, Planning Director Gail Goldberg said the department isn't quite there, but it's getting close. "We successfully went from what was considered a 100 percent general fund department to a budget that will be about 75 percent of special fund and only about 25 percent general fund," said Goldberg of the rise in fee-based funding. But fee increases are only a part of a grim picture in L.A. The city has instituted an early retirement buyout program and put many workers on a 10 percent furlough. Goldberg said that 40 planners have taken advantage of the early retirement program, which helped to reduce the number of forced layoffs but also drastically reduced the number of senior planners on staff. The proposed city budget for the 2010-2011 fiscal year would cut 13 more positions in the department. Notable departures include that of former Principal Planner Jane Blumenfeld, who was considered the department's foremost expert on the city code, and of Emily Gabel-Luddy, founding co-director of the department's Urban Design Studio, which opened only three years ago to much fanfare. "We are significantly down in terms of capacity, but we're not going to be facing huge layoffs," Goldberg said. "It's certainly a blow to the department to lose at one time that history of the department. I think, in some ways, it presents an opportunity to do some reorganization and to do things in a different way." Like Sacramento, Los Angeles is transitioning planners from specialized roles to more general planning assignments. The department is being restructured into teams based on city geography, and now planners will be involved in cases from start to finish, handling all aspects of each project. Goldberg said this reorganization has been in the making ever since she took over as planning director four years ago. "The criticism of the planning department was that we had functional silos. People that did subdivisions only did subdivisions. People that did zoning only did zoning," said Goldberg. "It has long been the thought that if we were organized in geographic teams….it would be better for the planners, but it would also be better for the work if people could take a project from the beginning to the end." That reorganization will likely be a good thing for the planning department, according to Los Angeles-based land use attorney Bill Delvac of Armbruster Goldsmith & Delvac. But he said the troubles aren't over in Los Angeles. His firm has seen an increase in work in recent months as developers try to time new projects for a rebound in the market. They're also trying to compensate for the backlog at the planning department. "Because it takes a year or two or three to get projects approved, more (developers) are gearing up now to hit the next cycle," Delvac said. That's good for his firm, but not so good for the planning department. "It's a challenge for the planning department," Delvac said. "The planners are not the source of the problem. They're on the receiving end." As the market recovers, cities and their planning departments will likely continue to rethink the way they operate, and the mechanisms that fund their operations. For now, they'll simply have to adapt an era of declining revenues and reduced department sizes – and the uncertainty of when the situation will begin to improve. Contacts Daivd Kwong, Director of Planning, City of Sacramento, (916) 808-2691 John Dugan, AICP, Director of Planning and Development, City of Fresno, (559) 621-8001 Gail Goldberg, AICP, Director of Planning, City of Los Angeles, (213) 978-1271 Bill Delvac, Armbruster Goldsmith & Delvac, (310) 209-8801

The Legislative Analyst's Office released possibly the most obvious report in its history last week. The LAO said it's a bad idea to spend one-time revenues on ongoing expenses, and it's an even worse idea to generate those revenues by selling things you're going to need for many years. The LAO concluded that the Schwarzenegger administration's plan to sell 11 state-owned office complexes to help balance the state budget was a "poor fiscal policy." The state would get a pile of money from the sale, but then it would have to spend more piles of money in future years to lease the office space from the new owners. Yeah, no kidding. The idea is not akin to cleaning out the garage and selling a bunch of junk to pay the light bill. It's more like selling your dishes and flatware to pay for groceries. You'll have food, but you'll still need something with which to eat it. Of course, the timing of the Schwarzenegger administration's idea couldn't be worse, as the state would be unloading assets near the very bottom of the real estate market. This is what's calling panicking, and savvy investors appear ready to pounce . The LAO found that the proposed sale of office buildings in Sacramento, Rancho Cordova, Santa Rosa, Oakland, San Francisco and Los Angeles would net the state $600 million to $1.4 billion. However, lease payments would cost the state $34 million per year more than continued ownership, and that's only during the first five years. Within 20 years, the plan would add an extra $200 million annually to state facilities costs. The office building sales are one portion of a fire sale that could also include state-owned fairgrounds in Costa Mesa and Ventura, at least a portion of the Cow Palace property in Daly City and the Cal Expo fairgrounds in Sacramento. There appears to be far less interest in these properties than in the state office buildings, which would come with a guaranteed tenant for 20 years. Los Angeles developer Jerry Epstein tried to ask hard questions about the administration's real estate strategy, because it made no fiscal sense to him. A member since 1983 of the Los Angeles State Building Authority – the entity that financed and managed construction of state office facilities in downtown L.A., and which continues to oversee facilities management – Epstein has more than a little real estate and finance expertise. Instead of answering Epstein's inquiries, the governor fired him from the unpaid position. Schwarzenegger did the same to members of a state building authority in San Francisco. But the governor can't fire the legislative analyst or members of the Legislature. The governor's plan went nowhere in the Assembly Committee on Accountability and Administrative Review on Wednesday, April 28. A background paper prepared for the committee said, "The sale of state-owned buildings reverses four decades of state facilities planning policy, which favors ownership of buildings over leasing office space. Dating as far back as 1973, state-sponsored cost-benefit analyses of leasing office space versus owning office space have consistently shown that owning office space is better for taxpayers." I understand that the state and many local government agencies are in dire fiscal straits. The situation is much worse than many people know. Now is the time to bring forward every wacky idea. But, obviously, we need to carefully evaluate those ideas before implementing them; otherwise, we could do more harm than good. During recent years, Sacramento politicians – including Gov. Schwarzenegger – have grown fond of saying they refuse to "kick the can down the road." Well, selling a state office building to generate some bucks today and letting someone else worry about how to pay for office space in the future is the definition of kicking the can down the road, or at least past election day. – Paul Shigley

A state appellate court has upheld the environmental impact report for expansion of the Lawrence Berkeley National Laboratory. It found that project opponents had forfeited most of their claims because they had failed to raise them at the administrative level. The court also ruled that the range of project alternatives that the lab considered, within a carefully articulated range of project objectives, was adequate. The Lawrence Berkeley National Laboratory (LBNL) is a federal lab operated by the University of California, Berkeley. The laboratory's primary facility is located in the hills above the UC Berkeley campus, although LBNL occupies some on-campus space and leases offsite facilities in the surrounding cities of Berkeley, Oakland, and Walnut Creek. In January 2007, the University of California regents published a draft environmental impact report (EIR) for a long-range development plan for LBNL's primary facility. The EIR was prepared as a program-level document, describing the likely improvements to the site through the year 2025. The long-range development plan called for adding 600,000 square feet of new space, taking on additional employees, providing more parking, and developing a campus-like setting "fostering interaction and informal encounters among lab staff." The EIR addressed five alternatives: no project, two reduced growth alternatives, a preservation alternative with non-LBNL use of historic resources, and a partial offsite alternative. After the regents approved the long-range development plan and certified the EIR, project opponents filed a California Environmental Quality Act (CEQA) challenge. The Alameda County Superior Court ruled for the petitioners with respect to an argument that the final EIR should have been recirculated because new information had been raised for the first time in the EIR's responses to comments and therefore was not fully considered. Otherwise, the court ruled for the University of California regents. Both sides appealed, and the First District Court of Appeal ruled for the university regents. The appellate court first addressed the project opponents' two appellate arguments: 1) the EIR contained an insufficient range of project alternatives; and 2) the university failed to consider numerical benchmarks and standards pertaining to water quality. The appellate court relied upon the university's articulation of six objectives and underlying purposes of the project that were, to some degree, specific to the existing LBNL site. In response to the argument that the EIR was required to consider a true offsite alternative, the appellate court concluded that the range of alternatives was sufficient and the EIR was "not required to consider every conceivable alternative." The court went on to observe that a true offsite alternative would not meet the lead agency's primary objective of creating a campus-like setting, "and would nullify most, if not all, of the other project objectives as well." To the extent the opponents were now challenging the framing of project objectives, the court found the effort to be too little, too late because the opponents had not contested the objectives administratively or in the trial court. The court also found that more than sufficient evidence supported the EIR's conclusion that the offsite alternative would not meet project objectives because it would separate the very staff members whose interaction the project was intended to foster. The appellate court rejected the project opponents' remaining claims because of the opponents' failure to exhaust administrative remedies. As to the opponents' argument regarding numerical benchmarks and standards pertaining to water quality, the court found the opponents' general identification of water quality impacts in their comments on the EIR was insufficient to preserve for judicial review the more specific issue of water quality benchmarks. The court also agreed with the regents that the petitioner had not exhausted its administrative remedies regarding EIR recirculation. Opponents had argued the regents should have recirculated the document because the final EIR contained new information with respect to greenhouse gas emissions. However, the court determined the opponents had the opportunity � prior to certification of the EIR � to bring this matter to the regents' attention but failed to do so. That failure barred the claim, and the appellate court reversed the trial court on this issue. The Case: Jones v. The Regents of the University of California, No. A123948, 2010 DJDAR 5244. Filed March 12, 2010. Ordered published April 7, 2010. The Lawyers: For Jones: Michael Lozeau, (510) 749-9102. For the regents: Michael Zischke, Cox, Castle & Nicholson, (415) 262-5109. -- William W. Abbott

CAMBRIDGE, Mass. -- Last year shopping mall giant Westfield floated a proposal for a 49-story tower in Century City, part of a master plan to reinvent one of the great prototypical edge cities . The problem, though, is that Century City is no longer on the edge of anything. It's smack in the middle of some of the most congested streets and expensive residential real estate east of the Ginza District. The city Planning Department liked the project. But, naturally, the neighbors got involved, and some, you know, hemming and hawing ensued. When the metaphorical dust settled and the City Council approved the $800 million project, the building had lost ten floors and four local homeowners associations called off their lawyers. Of course, the "project" existed only on paper in the first place; critics say that the developer drew the extra ten stories only so they could be lopped off as an expendable peace offering. A triumph for the little guy? Not so much. Borderline extortion and bribery? Perhaps. Several of the four homeowners associations paid for their petitions with war chests won from agreements with other developers; no word on whether Westfield paid them off in this case. A distortion of the democratic process of the sort that happen every day across the country? If you ask Andres Duany, principal of Duany Plater-Zyberk & Co. architects and co-founder of the Congress of New Urbanism, the answer is yes. Duany spoke yesterday at the Journalists Forum on Land and the Built Environment, sponsored by the Lincoln Institute of Land Policy in collaboration with the Neiman Foundation for Journalism at Harvard and the Harvard Graduate School of Design. As arguably the most influential living urbanist, Duany does not hide is opinions, and he held forth on everything from Haiti to backyard-dwelling fowl, but he reserved some of his most scathing criticism for the process that passes for local democracy in many parts of the United States. To hear Duany describe it -- and he does so with all the swagger and spirit you'd hope for from one of the field's superstars -- those homeowners in the shadow of Century City are not an oppressed minority -- they are special interest like any other. They amount to a lobbying group seeking rent according to the project that, in this case, the Los Angeles Planning Commission and City Council are or are not willing to approve. Obviously their claim on their immediate surroundings -- though legitimate -- should not trump all other considerations. Duany contends, however, that most public processes, no matter how sophisticated and complex, end up privileging this one group over all others. Duany identifies three groups involved with contested developments: the developers, the immediate neighbors, and everyone else in the city. We don't need to worry about the developers, who advocate for themselves and whose interests are more or less transparent. Conversely, neighbors may expend serious efforts, but they basically want one thing: nothing. As any planner knows, it's the third group that's tricky. The silent majority typically remains true to its name. Duany proposes that cities adopt a hybrid of a grand jury and an electorate: 200 (or however many) ordinary citizens randomly sampled and empanelled to learn about, deliberate on, and render a decision on proposed projects. He notes that the wisdom of democracy does not lie in participation -- which depends simply on who shows up -- but rather on sampling. The recommendation of that random sample would stand for the interests of the entire community and be balanced against those of the other two parties. Though public officials would typically have the final say, the panel would give them cover to make decisions that might enrage the neighbors. Whether this system would fly anywhere in California remains to be seen, although it's a good bet that plenty of planners would jump for joy. According to Duany, it has worked elsewhere. He cited an example of a public beach club built in Perth, Australia, on a beach roughly equivalent to Malibu. Duany says that the homeowners with million-dollar views hate the place, but the panel of citizens thought it was swell -- and now so do its patrons. Even if Duany's beach club story is apocryphal, it still makes perfect sense. What might not make sense is going to the trouble and expense of empaneling hundreds of ordinary citizens to decide how tall a building should be or whether it creates too much traffic. Then again, it could hardly be more cumbersome, unpredictable, or expensive than the current process. With a panel, a city could prescribe a set number of meetings, reserve options for developers to respond to questions and suggestions, and then that's it: the process is short, predictable, and less expensive in several ways. Most obviously, it would eliminate the interminable ad hoc meetings that plague many projects. It would also eliminate the potential for graft, by which developers can essentially buy off homeowners. And it could cost literally millions less if you factor in the cost of delaying projects ad infinitum. Whether this process would yield 100-story towers with rooftop chicken coops or cap everything at three stories and two parking spaces per 1,000 feet I don't know. But that's Duany's point: we don't know what the public wants until planners identify who "the public" -- as opposed to the stakeholders -- actually are and discern their interests in a reasonable way. * * * Duany and his fellow presenters this weekend discussed a great deal more tha the public process, some of which (measuring density and infill) pertains to California and some of which (urban population loss; greenfield development in Madagascar) does not. Most of it was fascinating and I, along with many of my colleagues (including Planetizen's Tim Halbur ) will be sharing more of what we learned in Cambridge over the next few days. Many thanks to Anthony Flint and his colleagues at the Lincoln Institute and Harvard for convening a fantastic group. - Josh Stephens

One Yuba County developer whose subdivision project was defeated in a referendum should buy lunch for everyone who voted against him. The voters killed the 5,100-unit Yuba Highlands project in early 2008, just as the housing market decline was picking up steam. Developer Gary Gallelli actually ended up campaigning against his own project, saying he wanted to pursue a scaled-down project. But the overwhelming, nearly 4-to-1 vote against Yuba Highlands, combined with the real estate crash, effectively ended any chance of developing the 2,900-acre site in the Yuba County foothills east of Marysville for the foreseeable future. Essentially, the voters ended for good what could have been a long, painful and expensive growth fight. Earlier this month, the developer made the best of the situation by selling a 700-acre conservation easement on a portion of the land to the Trust for Public Land (TPL). They also signed an agreement in which Gallelli agreed to place the rest of the property under a conservation easement as the TPL lines up more funding. This is the best possible outcome. Yuba Highlands was just the sort of project that received approval during the previous decade's roaring period, when housing development was king and real estate was going to make local governments rich. Cities and counties all over the Central Valley and on the fringes of L.A. approved similar exurban housing tracts. As they deal with the fallout of half-built infrastructure and abandoned developments , many of those cities and counties are now regretting their decisions.  The location of the proposed Yuba Highlands project was a disaster: an infrastructure-free wedge of land between Spenceville State Wildlife Area and Beale Air Force Base, and a nearly 20 minute drive from any urban services and employment sites. The Yuba County Board of Supervisors approved the project in July 2007 on a 3-2 vote, with even two of the supporters demonstrating reluctance. That vote was followed by a lawsuit over the environmental impact report, referendum petitions, and, soon enough, the death of the project at voters' hands. There was little evidence that Gallelli ever worked seriously on a smaller development plan.   Trust for Public Land used $400,000 from the Department of Defense to create buffers around military bases and $350,000 in environmental mitigation money from Caltrans to purchase the 700-acre conservation easement. It permits continued grazing and other agricultural uses, and prohibits urban development. I have no doubt TPL, in time, will lock up the remaining acreage. In the meantime, Gallelli and Yuba County's civic leadership now have plenty of opportunity to consider more appropriate places for growth. Places that have infrastructure. Places that aren't beyond the boondocks. Places that aren't so environmentally sensitive. Places like ... Marysville? – Paul Shigley

Updating or Revising your General Plan? Join Us - April 30, 2010! The UCLA Extension Public Policy Program is offering a one day training seminar on Friday, April 30th, illustrating what general plans look like and what they must contain to meet increasingly stringent state standards. If you have a general plan update approaching, or are undertaking new plans, or major revisions, we encourage you to attend. This program includes both legal fundamentals and hot-button topics like smart growth and sprawl; recent court decisions; and each aspect of a plan's development, formulation, and implementation. The seminar runs 9 am to 4:30 pm at the Figueroa Courtyard in downtown Los Angeles. Steve Preston, City Manager, City of San Gabriel and Woodie Tescher, Principal Technical Director of Planning and Urban Design at PBS&J will instruct the seminar. For more information please call (310) 825-7885. Online registration is available by visiting www.uclaextension.edu and searching for V6845.

Not long ago, when California's economy was booming and concerns about rising seas were mounting, California tapped into its environmentalist traditions to pass popular laws that promised to lead the nation in greenhouse gas mitigation. While there are no sure signs that the global climate has cooled, the same cannot be said for the state's support of anti-climate change legislation.  In 2006, the California Legislature passed Assembly Bill 32, a comprehensive bill designed to limit carbon emissions in almost every sector of the state's economy. Two years later, it passed a complementary bill, Senate Bill 375, designed to help achieve AB 32's goals by encouraging cities to re-make their built environments and transportation networks in order to limit driving and thereby reduce vehicular emissions. SB 375 facilitates regional planning, promotes the tenets of smart growth and encourages cities to grow more dense (see William Fulton's blog  Oct. 2008  and CP&DR's  SB 375 Resources Page ).  "They're both pivotal," said Stuart Cohen, executive director of transportation advocacy group TransForm and member of the SB 375 Regional Targets Advisory Committee (RTAC). "Without getting our land use under control, is basically impossible." Impossible or not, this task is likely to become a great deal more difficult if any one of a number of proposals to suspend AB 32 or SB 375 comes to pass.  AB 32 (Fran Pavley, D-Santa Monica) charges the California Air Resources Board with devising and adopting emissions regulations by January 2011. SB 375 (Darrell Steinberg, D-Sacramento) requires CARB, with the advisement of RTAC, to develop regional greenhouse gas emission reduction targets, and the state's 18 metropolitan planning organizations must devise "sustainable communities strategies." Those bills were passed in headier economic times. Now, as public support for global warming mitigation is faltering, the state's economy remains stuck in neutral, and developments are dying on the vine, California's landmark environmental legislation is under attack. AB 32 is facing a formal suspension in the form of a potential ballot initiative. And SB 375, though it is distinct from AB 32, is catching some of the AB 32 backlash as well as facing its own informal referenda. "The main way that AB 32 reaches into local government's business is through SB 375," said League of California Cities Executive Director Chris McKenzie. "There's lot of support for the policy underlying SB 375 but there's a growing sense with the economy… there ought to be some relief. AB 32's near-term goal of reducing carbon emissions is in jeopardy due to a loose coalition of legislators, gubernatorial candidates, local officials, and backers of a ballot initiative who are all calling for a halt to its implementation. These opponents claim that the state's economic condition, including 12 percent unemployment and a budget crisis in Sacramento, make AB 32 too expensive. "They're looking at this year as an opportunity, because of the global recession, to attack environmental regulations," said State Sen. Fran Pavley, who authored AB 32 while in the Assembly. "This one happens to be an initiative, but all regulations are under attack in California." Vocal opposition to SB 375 has arisen from cities that consider its provisions onerous and, in particular, are concerned that they do not have sufficient funds to conduct the studies and plan updates that SB 375 calls for. Next week, the board of the League of California Cities will receive recommendations from four different committees about whether to support AB 32 and SB 375. Two of those committees have already recommended that the league ask the governor to suspend both laws. Based on the committees' final recommendations, the league's board could take positions on either, or both, laws as early as next week. "It's not a discussion of the ballot measure," said McKenzie. "It's a question of whether the state is in such precarious economic condition and whether local governments and MPOs have had their own finances strained so much by the economy that...there ought to be some kind of delay." McKenzie noted that many city officials are saying that they simply do not have the funding to do the planning and offer the transit that SB 375 promotes. Sande George, executive director of the California chapter of the American Planning Association, said that APACA will soon discuss the issue of AB 32 and SB 375 suspension but has taken no formal position. The office of State Senator Darrell Steinberg, who authored SB 375, did not respond to repeated requests for comment. The attack on California's global warming legislation began in earnest in January when Assembly Member Dan Logue (Republican-Chico) introduced Assembly Bill 118. In its original form, first filed in January 2009, AB 188 would have repealed AB 32 (see Paul Shigley's blog  Jan. 27, 2009 ).  A subsequent version, which Logue revived early this year, would have suspended implementation of AB 32 until unemployment in California dropped to 5.5 percent. Logue contended that AB 32's regulations on greenhouse gas emissions would raise energy prices and exact a wide-ranging toll on the state's economy. "It would be a complete disaster…to implement AB 32," said Logue.  "It would shrink the economy and hurt the middle-class." Though AB 118 failed, a nearly identical voter initiative now appears destined for the November ballot. The "California Jobs Initiative," so called because of its backers' concerns for the economic impacts of AB 32, would suspend implementation of AB 32 until California's unemployment rate dips below 5.5 percent. However, upon review by Attorney General Jerry Brown, the initiative's title was changed to "Suspends air pollution control laws requiring major polluters to report and reduce greenhouse gas emissions that cause global warming until employment drops below specified level for full year." The initiative's backers, who include members of the Tea Party movement as well as pubic officials from cities across the state, say they do not necessarily object to AB 32's environmental goals but rather believe that they represent expensive and undue top-down regulation. The initiative's supporters had hoped to collect the necessary 433,000 valid signatures by April 16. They missed that deadline but, with a new infusion of donations, have vowed to keep trying. The "California Jobs Initiative" website points to survey results indicating that 56 percent of respondents oppose AB 32 after hearing arguments for it and against it.  Cohen, who opposes the measure, said he expects that it will get on the ballot but also said, "We don't think it will pass. "Our campaign… not opposed to AB 32," said Anita Mangels, spokesperson for the "California Jobs Initiative." "We're simply concerned about the timetable for implementation of AB 32, and what the initiative would do is adjust the timetable for implementation so the economic impacts would not be as harsh." Meanwhile, Republican gubernatorial candidate Meg Whitman has called for a one-year moratorium on AB 32's implementation, calling it "well intentioned. But…wrong for these challenging times" in an editorial in the San Jose Mercury News. Whitman has promised to suspend AB 32 if elected. As these efforts have gained traction and headlines, concerns have risen among environmentalists and planners that a wholesale backlash against global warming mitigation and related regulations may be afoot. "The same concerns relate to SB 375, and some of those concerns have been expressed to us by local governments themselves," said Jon Coupal, president of the Howard Jarvis Taxpayers Association, which is co-sponsoring the AB 32 suspension. "I think discussions involving AB 32 are going to necessarily entail discussions relating SB 375 as it relates to local governments. "We've never been big fans of government policies trying to force people into concentrated areas," added Coupal. Supporters of the "California Jobs Initiative," however, maintain that their efforts do not explicitly target SB 375. "SB 375 references AB 32, but it is legislation outside of the implementation of AB 32 that we're focused on," said Mangels. Supporters of both AB 32 and SB 375 note that the two are independent and do not rely on each other to achieve their respective goals. However, both are considered fundamental components of the state's efforts to reduce emissions and, in the case of SB 375, to promote smart growth. More formal challenges to SB 375 are a ways off, even if the "California Jobs Initiative" measure makes it on to the ballot and passes. "SB 375, while it's referenced in the AB 32 scoping plan, is fully its own law right now," said TransForm's Cohen. "To be undone, it would have to be undone by the legislature, or it have to be undone by a wholly separate initiative." "I think there's going to be a stronger movement to have the targets for greenhouse gas reductions in SB 375….to be less ambitious," added Cohen.                  If implementation of SB 375 goes forward while that of AB 32 is delayed, its impact on carbon emissions is unlikely to compensate for the expected carbon reductions that would have been created by a fully implemented AB 32. Whether its facilitation of compact development and walkable environments would in and of itself draw protest remains to be seen. "My own goal right now is to concentrate on AB 32," said Logue. "Once that's achieved, then we'll take a look at SB 375."  Contacts: Stuart Cohen,  TransForm  (510) 740-3150. Jon Coupal,  Howard Jarvis Taxpayers Association  ( 916) 444-9950. Dan Logue,  3 rd  Assembly District   (916) 319-2003. Anita Mangels,  "California Jobs Initiative"  (888) 591-4442. Chris McKenzie,  League of California Cities  (916) 658-8200. Fran Pavley,  23 rd  Senate District  (916) 651-4023. --Josh Stephens

Is this the year that CEQA goes down in a flaming pile of EIRs and writs? The year when unwashed masses of tree huggers watch helplessly as greedy developers pave paradise to put up parking lots? Probably not, but there is no doubt the California Environmental Quality Act is under attack these days. Legislation to weaken CEQA is pending in Sacramento, and a ballot measure that would prohibit citizen lawsuits based on CEQA has received clearance for signatures. The CEQA haters argue that the law is stifling California's economy. (You can swap "AB 32" or "SB 375" into that sentence if you want, but that's for another article.) I painted CEQA in a somewhat negative light for a story in the current edition of Planning magazine . I'm convinced that CEQA may – but does not have to – inhibit good development. For that story, I focused on proposed legislation that would permit the secretary of Business, Transportation and Housing to exempt up to 125 projects over five years from judicial review based on CEQA. In my mind, removing EIRs from judicial review is no different than exempting projects from CEQA entirely. With no judge looking over their shoulders, cities and counties will approve whatever they want. So far, that legislation – AB 1805 (Calderon and Nestande) and SB 1010 (Correa and Cogdill) – has failed to go anywhere. The Senate Environmental Quality Committee last week voted down SB 1010. The bills are being pitched as economic development legislation. Democrats, led by Sen. Alan Lowenthal, of Long Beach, demand to know which ready-to-go projects are being held up by CEQA. Proponents haven't had a good answer, because, as anyone in the development industry can tell you, the problem right now is lack of capital. No one is lending money for new development so nothing is ready to go. Still, the notion of exempting some large projects from CEQA is far from dead this legislative session. In fact, the idea could well become a side discussion during state budget negotiations. Other anti-CEQA legislation is also in play. Assembly Bill AB 2165 (Knight) would exempt construction of a hospital in Lancaster from CEQA. Assembly Bill 1704 (Jeffries) would exempt water pipeline replacement projects and new recycled water pipeline projects. Neither one of those bills has passed out of committee, at least not yet. Environmentalists are hot over AB 2313 (Buchanan), which would have the state establish thresholds of significance for greenhouse gas emissions, and require lead agencies to use those thresholds in environmental analyses. That actually seems like a pretty reasonable approach to me, but enviros say it's a sneak attack.  The legislation, according to the Center for Biological Diversity, would permit "developers and other polluters... to avoid implementing better planning and building methods that could otherwise reduce their climate impact." The biggest wildcard, however, might by the ballot initiative by Orange County developer Starpointe Ventures to make the state attorney general's office the sole enforcer of CEQA, and to prohibit citizen lawsuits. Proponents need to gather 434,000 signatures to get the measure on the ballot. Again, the proponents claim CEQA is doing economic harm, an argument bolstered by a generous summary from the Legislative Analyst's Office and Department of Finance. They say: "Unknown, but likely positive, net impact on state and local government revenues from increased economic activity. Unknown fiscal effect, if any, on state and local government costs to mitigate environmental effects of projects." I think the initiative would be a very tough sell in an election, because environmentalism remains good politics in California, and because so many Californians believe a strong economy and a healthy environment are not simply compatible, but mutually dependent. Of course, if the unemployment rate remains at 12 percent, and public budgets force schools to close and prisons to set inmates free, well… anything is possible this election year. - Paul Shigley

One of the least scenic ways to visit Napa Valley is to enter from the south, through the industrial zone between the cities of American Canyon and Napa. The congested traffic and office parks near Highway 221 are a long ways from the idyllic pastoral stretches to the north. But efforts to transform 152 acres of industrial land in the area into a mixed use development has stirred up opposition from Napa Valley residents who fear that its proposed 2,600 units and 6,000 residents � smaller than all but two of the county's cities � will bring sprawl and traffic out of scale with the region's character. The developer, however, claims that the project will actually ease congestion by providing a place for local workers to live, rather than commute from neighboring Solano County. On the former site of Napa Pipe Corp., a manufacturer of large oil and gas pipelines, the project is proposed near the intersection of Highways 221 and 29, in an area that already has many of the county's non-farm jobs, according to developer Keith Rogal. And, in a region famous for empty, vineyard-flanked country lanes, it also has some of the worst traffic in the county. Rogal's firm, Rogal+Walsh+Mol, specializes in converting already-developed properties near wetlands into new uses. A decade ago, the firm built the Carneros Inn resort on 27 acres of unincorporated county land that had been an RV park. The project, which includes cottages and homes set in a village setting with shops and restaurants, garnered national awards from the American Institute of Architects and the Congress of New Urbanism. But Rogal is the first to concede that the Napa Pipe is a different type of project. For starters, it is particularly dense for Napa County, with proposed apartments and townhomes rising to seven stories; it would also include retail, an office park, a small hotel and a continuing care complex for seniors. The property is next to the Napa River, and is envisioned as a walkable community. A marina, river trail and parklands are part of the project's mix. As proposed, Napa Pipe would be the largest project in county history. The Napa Pipe development would add approximately 6,000 new residents, on a site about two miles from the Napa Municipal Airport. Some opponents say the new project would be akin to plopping down a new town the size of St. Helena in the area. Quite unlike the baronial estates of wine country, Napa Pipe will have nearly 2,600 apartments and townhomes, with 20 percent set aside as affordable units. The project is expected to help Napa County meet state-mandated affordable housing goals. Critics of the project include the nearby cities of Napa, Yountville and American Canyon, along with agricultural and environmental groups, such as the Napa County Farm Bureau and the Sierra Club. Rogal also noted that some small local developers oppose the project. The project is adjacent to the city boundaries of Napa, and is located about three miles from Napa's downtown. In comments on a recent draft of the EIR for Napa Pipe, the City of Napa requested that EIR be substantially revised. The city has not been swayed the project's provision of affordable housing and said in a 47-page comment letter that it would prefer to build affordable housing that the project is supposed to provide within its own borders. But the county is moving ahead, said Hillary Gitelman, Napa County's conservation, development and planning director. "We're still evaluating all the comments," she said. "We haven't identified any fatal flaws that make us start all over again." A final EIR should be ready later in the year and come before the county's planning commission and board of supervisors for a vote soon thereafter. Supervisor Brad Wagenknecht, whose district includes the city of Napa, said that with two supervisors up for re-election in November, a vote on the project could be delayed. Wagenknecht, who hasn't taken a position on the development, said two major concerns are traffic and water usage. The project is expected to bring 17,600 new trips a day, he said. "It will add to a situation for us that feels like it's already broken." The draft EIR identifies more than ten intersections in the area that are currently near capacity. Rogal's firm contends that Napa Pipe could minimize traffic impacts by becoming a transit-oriented development if train service could be introduced on tracks that run across the property. They are even proposing water taxi service to the City of Napa via the Napa River. The project also envisions highway improvements and an extension of a bike trail through the property in order to mitigate traffic concerns. Even if the project wins approval, it could be years before construction begins, Gitelman said, noting that the site has to be raised for flood protection, and remediation needs to be done on soil contaminated by the sites former industrial uses. In comments on the draft EIR, the Napa Valley Farm Bureau criticized the project. President Jim Lincoln noted that extensive mitigation is required, "most of which has questionable financing and little chance of being implemented in the short or intermediate term." Opponents of the project tried to derail it in June 2008, when they placed a ballot initiative to impose a 1 percent annual growth cap and height limits on unincorporated county land as Measure N (See CP&DR, May 2008 and June 2008 ). The measure lost, garnering 46 percent of the vote. But one leading opponents said another ballot measure could return if county approves the project. "One of our options would be to do a referendum if they approve it," said Mel Varrelman, a former county supervisor and opponent of Napa Pipe. If approved by the Board of Supervisors, residential units at Napa Pipe won't be constructed until 2013, Rogal said. Rogal said only 200 to 300 units will be built annually, and full build-out is a decade away. Napa Pipe will also provide its share of money for traffic improvements and for schools, he said. "The population and car trips will increase on a slow pace over a long period," he said. The Napa Pipe land sits on 3,000 acre feet of groundwater, Rogal said, more than enough for its needs. But Wagenknecht said that the county generally encourages groundwater to be used for agriculture. "There's a priority of groundwater being for agricultural use, but every hotel in the county pumps groundwater," Rogal said. Rogal said the developers have acquired additional water for the site, and will recycle water as well. More water would be used if the site stays in its current industrial designation, rather than with his project, he noted. Contacts: Hillary Gitelman, Napa County Conservation, Planning and Development Director (707) 253-4805 Brad Wagenknecht, Napa County Supervisor, (707) 253-4386 Mel Varrelman, former Napa County Supervisor (707) 963-1040 Keith Rogal, Rogal+Walsh+Mol (707) 251-0123 Napa County website, with draft EIR and comments, is at www.countyofnapa.org Nape Pipe project website is www.aHomeforNapans.com

In supporting the City of Stockton's refusal to accept a lawsuit filed by a citizens group against a proposed big-box store, the California Supreme Court has, for the second time in two months, made clear that if a public agency provides notice of a California Environmental Quality Act decision, legal challenges to that decision may be barred by the shortest statute of limitations, among several that the CEQA statute provides for, applies to legal challenges regardless of the context of the challenge. The April 1 ruling held that a 35-day statute of limitations barred a citizens' lawsuit challenging a proposed Wal-Mart project on the grounds that it violated the California Environmental Quality Act (CEQA). The court abided by the 35-day statute of limitations, articulated in Public Resources Code section 21167 subdivision (d), because the City of Stockton had filed a valid notice of exemption from CEQA and was therefore protected by the shorter statute of limitations rather than by a 180-day statute that the citizen's group believed ought to apply. The decision confirms the protections granted by CEQA to a public agency that adopts a notice of exemption (NOE) and to a project applicant that complies with the NOE's requirements. The ruling is in line with the court's February decision in Committee for Green Foothills v. Santa Clara County Board of Supervisors, in which the court ruled that environmentalists had only 30 days to sue over the county's decision to forego an updated EIR for a recreation trail (see CP&DR Legal Digest, February 15, 2010 ). The latest case, Stockton Citizens for Sensible Planning v. City of Stockton, involved a project by developer A.G. Spanos. The company had prepared a master development plan for Park West within the larger A.G. Spanos Park in Stockton. As a condition of the city's approval of lower density development elsewhere in A.G. Spanos Park, the city required a density transfer agreement obligating the construction of at least 935 multifamily residential units within Park West. In 2002, the City Council certified an EIR for Park West and approved the master development plan, replete with the separate density transfer agreement. Under the master development plan, the city's Design Review Board and community development director were required to approve proposed projects within the plan area as long as the board and director determined the projects were consistent with the plan's criteria, goals and purposes. Acting on behalf of Wal-Mart Stores, land use consulting firm Doucet & Associates subsequently proposed a 207,000-square-foot retail store to be sited on land in Park West that had been designated for multifamily residential units. The director approved the project subject to five minor amendments in December 2003. The next day, Spanos informed the city it would not construct 627 of the 935 units required by the density transfer agreement. Instead, Spanos offered assurance that the company would build the additional units within 10 years at locations in the city. In February 2004, the city filed an NOE for the project, stating the project was a retail use to be constructed in a first phase of 138,722 square feet and a second phase of 68,888 square feet. The NOE did not name Wal-Mart or identify the project as a Wal-Mart Supercenter. The notice did say that the project was consistent with the master development plan, and that the ministerial determination of consistency was not subject to CEQA review. The 35-day period for challenging the NOE expired on March 23, 2004. Not until July 22, 2004 did the group Stockton Citizens for Sensible Planning file suit, claiming that the project violated CEQA because the city had not prepared an EIR to assess the effects of the Wal-Mart store. They further claimed that that the project deviated substantially from the master development plan because the Wal-Mart would be developed on parcels planned for high-density residential housing. The city, Spanos, Doucet & Associates, and Wal-Mart demurred on the grounds that Stockton Citizens had not commenced the suit within 35 days of the filing of the NOE. The citizens' group argued that the community development director erred in approving the project and that the statute of limitations for a challenge to the NOE should therefore abide by the (Can a statute abide?)180-day period that applies when no NOE has been filed, and not the shorter 35-day period applicable when public notice has been provided by means of an NOE (Public Resources Code, � 21167, subdivision (d); CEQA Guidelines, � 15112, subdivision (d)(2)). Both the San Joaquin County Superior Court and the Third District Court of Appeal rejected the city's and developers' statutes of limitations defense and accepted Stockton Citizens' argument the city had processed and approved the project in error. The state Supreme Court reversed the lower courts' decisions. It found that flaws in the decision-making process underlying a facially valid and properly filed notice of exemption do not prevent the NOE from triggering the 35-day period to file a lawsuit challenging the agency's approval of a CEQA-exempt project. "We harbor no doubt, on these facts, that the 35-day limitations period � had expired before plaintiffs filed their lawsuit," Justice Marvin Baxter wrote for the unanimous court. The court explained that when a properly filed NOE complies in form and content with CEQA requirements and declares the agency has taken an action that would constitute final approval of a project under a CEQA exemption, the 35-day period for challenging the validity the approval begins to run. The statute provides that an NOE must contain a brief description of the project and its location as well as a finding that the project is exempt from CEQA. This finding must contain a citation to the statute or CEQA Guideline on which the agency is relying, and a brief statement of reason to support the exemption (CEQA Guidelines, � 15062 subdivision (b)). The court found that Stockton's NOE was adequate because it stated the project was a retail use consistent with the master development plan, specified the exact location of the project and stated that the project was exempt under Public Resources Code � 21080 subdivision (b)(1) and Guidelines � 15369. According to the court, Public Resources Code � 21167 subdivision (d) requires that an action or proceeding alleging that a public agency has improperly determined that a project is exempt from CEQA pursuant to section 21080 subdivision (b) shall be commenced within 35 days from the NOE filing date. The court ruled that a statute of limitations "operates conclusively across-the-board" and "does so with respect to all causes of action, both those that do not have merit and also those that do." This interpretation, Baxter wrote, aligns with CEQA's process of establishing and emphasizing public notification of an agency's action or decision as the event triggering the shortest applicable limitation periods for lawsuits alleging noncompliance with the statute. The Case: Stockton Citizens for Sensible Planning v. City of Stockton, No. SI59690, 2010 DJDAR S159690. Filed April 1, 2010. The Lawyers: For Stockton Citizens: William D. Kopper, (530) 758-0757. For Wal-Mart: Judy V. Davidoff, Sheppard Mullin Richter & Hampton, (415) 434-9100. For A.G. Spanos: John Briscoe, Briscoe, Ivester & Bazel, (415) 402-2700.

0-and-4. That's the Third District Court of Appeal's record in California Environmental Quality Act cases at the state Supreme Court since 2007. Earlier this month, in Stockton Citizens for Responsible Planning v. City of Stockton (see CP&DR Legal Digest,  March 15, 2010 ) , the state Supreme Court unanimously reversed a Third District ruling regarding the statute of limitations for filing a lawsuit that challenges a city's notice of exemption from CEQA review. The state Supreme Court has issued eight CEQA rulings since mid-2006. Exactly half of the rulings have been reversals of Third District decisions. None of the other five appellate districts has been reversed more than once. A few months ago, when the state high court overturned a Third District decisions concerning a Sacramento County general aviation airport, I suggested the justices in the Sacramento-based appellate district might not understand CEQA . Upon reflection, I don't want to try to defend that notion. But if I were a lawyer with a CEQA case in the Third District, I would be hesitant. To figure out what's going on here, let's have quick look at the cases. In one case, the Third District rejected the programmatic EIR for the Cal-Fed Bay Delta project because the gigantic document lacked detail and did not consider a no-growth alternative for Southern California. In another case, the Third District said Sacramento County must analyze the impacts of not permitting continued operations at a general aviation airport that had skirted county codes for decades. Those two decisions struck me at the time as suspect, and the state Supreme Court later reversed both decisions. In a third case, Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova , (2007) 40 Cal.4th 412, the Third District upheld as adequate the water analysis for a 20,000-unit community plan. Something else was in play here, though. The Third District was so strongly critical of the legal tactics employed by the Citizens' lawyer that the court mostly bypassed the merits. The State Supreme Court, however, had no trouble getting to the merits, and it rejected the water study. In the latest case, the Third District in a 2-1 ruling forgave Stockton Citizens from missing the 35-day statute of limitations because the city's approval process was, should we say, nonstandard. The planning director had approved development of a Wal-Mart Supercenter where multi-family housing was not only planned, but was required by the city as a condition of a approval for a master development plan. The planning director's ministerial decision to permit the Wal-Mart store was made without any public notice or environmental review. The city simply filed a notice of exemption (NOE) from CEQA two months later. Not surprisingly, the episode flew under the radar and the normal collection of Wal-Mart opponents and smart-growth advocates was late getting to the courthouse. Tough noogie, said the Cal Supremes. "Whatever the actual defects or flaws in its process of approving the Wal-Mart project under a CEQA exemption, city attempted, by filing an NOE for the project, to comply with CEQA," Justice Marvin Baxter wrote. Thus, there was no excuse for missing the 35-day deadline to sue. Essentially, the court said the law is the law. The justices declined to factor the city's, uh, nonstandard administrative process into their decision on the CEQA statute of limitations. The high court's approach hints at the common thread in the overturned Third District decisions: In each instance, the Third District went beyond a strict interpretation of CEQA. The law does not require consideration of patently absurd project alternatives (e.g. no growth in Southern California), nor does it require a study of the impacts of a private business closure, permit exceptions when a city does a favor for a well-connected developer, or allow judges to blow off an annoying lawyer. As of today, no CEQA decisions by the Third District or any other appellate district are on review at the state Supreme Court. Maybe this means that everybody now is clear on the rules. But I doubt it. – Paul Shigley