I live too close to Century City and Beverly Hills to objectively report on the what is shaping up to be the most bitter land use battle in California: that of uber-wealthy Beverly Hills versus uber-ambitious Los Angeles County Metropolitan Transportation Authority. Here's my best shot at an update.  Last week the Metro board gave an historic go-ahead to the  westward extension  of the Los Angeles Purple Line subway. Though environmental and engineering documents for the subway have been certified for the entire 9.6-mile extension—which would pick up at the line's current terminus, two miles west of downtown, and extend roughly to the 405 Freeway – the segment that was approved stops short of that long-sought western reach. A beleaguered, marginalized, forlorn hamlet stands in its way.  For the past two years, this entity has claimed that Metro is imposing itself on a powerless little town. Civic leaders have described it as David vs. Goliath, with Metro as the Goliath. Residents who are confined to 10,000 square-foot mansions and condemned to navigate Los Angeles traffic in such mean conveyances as Maseratis and Aston-Martins have launched all manner of epithet against the transportation authority because of a plan that could, they say, blow up, or cripple, Beverly Hills High School.  Though it is in the 90212 zip code, in the city's humble southern portion, Beverly Hills High School is nonetheless one of the finest public schools in the region, so much so that generations of students have faked Beverly Hills addresses in order to gain admission. But, according to the Beverly Hills City Council, the Beverly Hills Unified School District board, Metro poses a grave danger to future Brandons, Brendas, and Andreas. The community is irate about Metro's preferred alignment ( link to map), which would put a station at Constellation Boulevard, in the middle of Century City, run the line directly under the school. Beverly Hills would prefer a station on Santa Monica Boulevard and a subsequent alignment that would run under Santa Monica Boulevard. School board president Brian Goldberg thinks that future pupils should fear for their lives. "We don't feel that MTA (Metro) has done their due diligence with respect to uncovering potential safety concerns with the number of abandoned oil wells, methane gas, saturated soil, the impact that it may have on 80-year-old buildings on the high school site," said Goldberg. The city has requested a special hearing in front of the Metro board before the alignment is approved. It will take place May 17. Back on campus, junior class president Jason seems more concerned about getting an education than fighting one of the biggest infrastructure projects in the nation. "I feel as though hysterics have been a factor here," said Jason. "People are blowing this issue out of proportion, giving it more attention than it deserves." (I agreed to obscure Jason's name because he is a minor, and probably doesn't want to be associated with what he considers an embarrassing spectacle.) For the past two years, debate about the subway has been the loudest conversation in Beverly Hills since the trial of Lindsay Lohan. Though Metro has held innumerable public meetings on the proposed subway dating back to at least 2006, it wasn't until late 2010 that civic raised concerns that some of the 17 alignments that Metro had published in its Alternatives Analysis might pose a problem. Originally, the most clear and present danger – articulated by then-School Board President Lisa Korbatov – was that terrorists would use the subway to blow up the school.  This premise assumes that these terrorists have no access to a motor vehicle and have never seen Shannen Doherty's early work in "Heathers." The debate has since shifted to less fanciful grounds. "We're not asking MTA to mitigate terrorist attacks," said Goldberg. Many in Beverly Hills believe that the Constellation station is a conspiracy instituted by Century City developer JMB Realty. Or it could be that JMB is one member of a loud chorus that thinks it's silly to put the station at Santa Monica Boulevard, immediately across the street from a golf course, rather than in the middle of the second-largest office district in the city. There's discussion about earthquake faults too, with dueling seismic analyses, that seems unlikely to be resolved. Goldberg said the school board has narrowed their protests down to two main concerns: things that would blow up if underground excavation takes place, and things that would not get built if underground excavation does not take place. School officials simply do not trust Metro to construct tunnels safely and, in particularly, avoid igniting underground pockets of methane gas. "If we're in control…we would be able to manage that process and we will be the ones that are responsible for mitigating, not MTA," said Goldberg. "I'm not going to leave the safety of our students in the hands of an MTA board whose only goal is to tunnel underneath the high school." Goldberg stressed that the city does support the subway—just not the tunnel under the school. A video produced by the PTA rendered some of these outcomes in gripping "A-Team"-era special effects.  Metro officials contend that fireballs and carnage are not exactly in their best interests either.  "If we did anything that was unsafe, not only would it undermine that project but it would undermine everything that this agency is trying to do," said Jody Litvak, community relations manager for Metro. (Disclosure: Litvak and I both serve on the board of a local civic organization.) Litvak also pointed out that the agency has constructed dozens of underground miles in the county without incident. She said that some of those tunnels run under schools, as do segments of Bay Area Rapid Transit. Goldberg's second major contention is that the tunnel—the top of which would be a full 50 feet below grade, even accounting for the campuses sloping topography—could impede future building projects to expand and modernize the school. He explained that the Division of the State Architect must approve any school development plans, and he feared that the presence of the tunnel could make the State Architect balk. Metro officials say that they are more than willing to collaborate with the school district to try to accommodate future development. If only the district would collaborate with Metro. "I'm sure we could and I'm sure we would be willing (to collaborate), but we're in a situation right now that makes it difficult because we were told some time ago that all communications between Metro staff and school district staff had to go through attorneys," said Litvak. "There's been a fair amount of saber-rattling leading one to infer the likelihood of lawsuits." Jason, the junior class president, would prefer that all the adults in Beverly Hills quit their drama and let the subway take its course. He said that most of his schoolmates—they being the children that everyone wants to protect—likely feel the same way. He even conducted a Facebook poll to find out. "The majority of the people who answered my poll said they didn't care, which to me translates as they're not really interested in our school putting up the fight that it is," said Jason. He has clearly been learning lessons that the school board has not approved. "Subways run under all over metropolitan areas. They go under commercial buildings….they go under other public buildings," said Jason. Meanwhile, he continued, "the likelihood of a fatal automobile crash is very real, despite the safety precautions and airbag regulations designed to protect us. However, we drive anyway. To fight the subway is to drive away modernization." In the course of raising hell against Metro, no one in Beverly Hills seems to have the patience to listen his point of view. "I feel as though this issue is highly political, governed by homeowners and businesses," said Jason. "Regardless of what I say…the board responses to its voters, so that's where the power is." Editors of the school paper, the  Highlights , did not respond to requests for comment. Neither did Gabrielle Carteris.  Goldberg was quick to point out that Beverly Hills itself is not as powerful as some might think.  "We don't have private citizens that are writing checks to BHUSD," said Goldberg. "The perception that somehow we have wealth and means--maybe individual families who send their kids to our schools have that—but the district is suffering." A version of this article appeared on  Next American City's  daily blog.

Since the passage of the Clean Water Act in 1972, when the Environmental Protection Agency told a property owner to jump, in some cases the property owner's only possible response was "how high?" No so anymore.  Last month, in Sackett vs. Environmental Protection Agency , the United States Supreme Court issued a ruling that places a limitation on how far the EPA can go to compel property owners to comply with the Clean Water Act.  To enforce the act, EPA officials often issue "administrative compliance orders" to property owners whom it determined were discharging pollutants or otherwise harming wetlands on their property. Chantelle and Mike Sackett had been cited for doing just that and received a compliance order halting their construction of a home near Priest Lake, Idaho. Refusal to follow the order would have come with a fine of $37,500 per day.  Plaintiffs claimed that EPA policies unfairly prevented property owners to contest these fines.  "Our main objection was that the EPA was imposing the threat of ruinous fines and even criminal prosecution without any proof of violation or an opportunity to be heard," said Reed Hopper, principal attorney with the Pacific Legal Foundation, which represented the plaintiffs. "There was simply no accountability." On a 9-0 decision, the Supreme Court held that a compliance order--and the threat of fine--could be subject to a suit because, according to the justices' decision, the agency treated the order as a "final ruling" without any other procedural remedies for the property owners. This ability for a property owner to now sue for a "pre-enforcement review" may give EPA officials pause when issuing compliance orders in the future.  "I think it's a great step forward for property rights and the rule of law and due process," said Hopper.  How large a step it really is--and what practical impact it will have--is debatable.  On the one hand, the ruling is arguably the most significant land-use related ruling since 2005's Kelo vs. New London decision, which upheld the right of governments to invoke eminent domain for the purposes of economic development, and 2006's Rapanos v. United States, which narrowed the scope of waterways and wetlands that were protected under the Clean Water Act.  (Not coincidentally, some of the ambiguity in Sackett stems from the Rapanos ruling; the Sacketts' property is not technically a wetland but rather falls under the more ambiguous category of "waters of the United States.") Thus far, Sackett does not appear to have far-reaching legal impacts.  Many observers note that the ruling was intentionally narrow and applies only to the specific type of compliance order that was at issue in the Sackett case.  "The decision was very narrow and leaves open to EPA the ability to enforce the law either using  the same mechanism, but also being prepared to go to court, or using different mechanisms and slightly different approaches," said Devine.   The has not announced any new policies as a result of the decision.  "EPA will of course fully comply with the Supreme Court's decision, which the agency is still reviewing," said Bill Keener, spokesperson for the EPA's San Francisco office, relaying a statement from EPA headquarters.   Notably, the Sackett decision does not place any new constraints on the EPA. The burden remains on the landowner to object to EPA compliance orders through litigation.  "There's nothing in this decision, as I read it, that limits EPA's ability to warn dischargers when the agency believes someone is violating the Clean Water Act," said John Devine, staff attorney in the Natural Resources Defense Council. "If the EPA wants to use that approach, it needs to be prepared to spend the resources to litigate the issue of the discharger's liability under the law when it issues the order." Hopper, however, said that just that threat of litigation may be enough to prompt the EPA to issue compliance orders more conservatively, or to do more research before issuing orders.  "What we're after was to try to make, for the first time, the EPA accountable for its enforcement action," said Hopper. "The agency is going to have to do more than just a drive-by type evaluation." Even so, Hopper said that the ruling is likely to affect only a few of the roughly 3,000 compliance orders that, according to CNN, the EPA issues each year.  "It will have no effect on that whatsoever," said Hopper. "The only cases that are going to be brought to court are going to be those in which the agency is acting at the margins." However it affects the EPA's practices, the Sackett decision seems unlikely to rile activists in either the property-rights movement or the environmental movement. Though the Kelo decision did not actually set new legal precedent, it still galvanized property-rights advocates and spawned a slew of new state laws meant to restrict the use of eminent domain. Because the Sackett ruling restricts government power--albeit only slightly--no such response is expected.  "Here we have a decision that struck down governmental power, so there's nothing for people to react to," said Sean Hecht, executive director of the Environmental Law Center, UCLA Law School. "Government just has to decide how it's going to change how it does business as a result. No one's going to get up in arms about an abusive power based on a decision like this." Though the EPA issues Clean Water Act compliance orders all over the country—3,000 per year, according to CNN—California poses a particular challenge to EPA officials because of the diversity of the state's wetlands, which do not always adhere in reality to the federal definition thereof. Nonetheless, there appears to be little reason to believe that the ruling would affect California any more or less than it would any other state. If anything, fewer opportunities to issue compliance orders may arise in the first place.  "The wetlands there tend to be small, vernal pool types….water features that are only questionably subject to control under the Clean Water Act," said Hopper.

Today, on the eve of the 20th anniversary of the Los Angeles civil unrest, my sense of frustration remains intact with all parties: the Los Angeles Police Department and former Chief Darryl Gates; the looters who torched and ransacked small businesses in my former neighborhood in West Adams; and all-white juries in suburban communities, with their curious reluctance to convict policemen accused of using excessive force.  Even more frustrating, however, was the failure on the part of both business and government to acknowledge the deepest, fundamental cause of the riots, which was institutionalized racism. This type of racism took the form of "red-lining" by banks and insurance companies, which often refused to make loans or underwrite businesses in "undesirable" or "high-risk"  (i.e. minority) areas. This resulting economic devastation of red lining can be found can be found in African-American communities throughout the United States.  African-American communities are poor not because black people are somehow lacking in enterprise but rather because major lenders have denied them capital.  Let's be very clear: institutionalized poverty, made possible by red lining, was the real cause of the Rodney King riots.   Also frustrating, if well-intentioned, was the effort of private, non-government groups like Rebuild L.A. to attract both capital and businesses to the riot area. Remember that riot area stretched from Long Beach to Pasadena. (Like everything else in Los Angeles, the riots took a linear path, along major thoroughfares, in cars.) I was skeptical then, and remain so now, that private enterprise was somehow more able than government to break down the colossal edifice of racism, poverty and blue lining.  Rebuild LA eventually wound down a few years later with few tangible achievements; perhaps the organization should be credited with providing good public relations and a positive push to lenders to support the development new shopping centers and some new housing in South Central.  In fact, working class people spend much of their disposable income, more so than everybody else does, on food and retail goods. Retailers often do well in working class neighborhoods (although some supermarkets have complained in the past that pilferage has made some stores unprofitable and driven up food prices in poor neighborhoods.) Yet South Central in general and the LA in particular are better off now than they were 20 years ago.  The reasons, ironically, may have little to do with the King riots. The first reason is the rapid growth of the African-American middle class, and the slow realization on the part of corporate America that the majority of African-Americans are middle income wage earners, not scowling gangbangers with gold-plated cocaine spoons dangling from their neck chains.  Although grotesque and bigoted, this misperception of the Black community continues to hold sway in many parts of the country.    A second reason was the �SoHo phenomenon,' or the fad of buying cheap industrial buildings or outdated office buildings in downtown areas for conversion into fashionable "loft" housing. In the late 1990s and early 2000s, the widespread popularity of this type of real estate investment increased the comfort level of lenders who would have shunned such deals even a few years earlier.   (In fairness, this loft-conversion mania was largely market-driven, even though local agencies, such as the late LA Community Redevelopment Agency, had spent decades advocating for downtown housing, with limited results.) A third reason is the rise of ethnic retailing, with shopping centers designed for specific populations--notably Latino and Asian communities.  The success of these businesses, and their corporate "depth" of capital, has increased their popularity among both shopping center owners and the lenders who review all their leasing decisions.  Money is the common factor among all these reasons for recovery.  Urban areas�and that includes the suburbs�depend on steady infusions of capital to attract new residents and new employers while maintaining property values.  When new investment came to South Central, the community improved, if only a little.   And yet, a few years ago, I covered a story of a new charter school on Vermont Avenue, not far from the intersection where the riots started.  The architects explained to me that the building lacked transparent windows, to protect students from the possibility of targeted shootings. The neighborhood is better for having the school, but the defensive character of the school building is a reminder that social conditions remain much the same as they were before the Walpurgisnacht of 1992.  Finally, a word of thanks to Warren Olney and his producer and my long-time pal Frances Anderton at  "Which Way LA?" on KCRW-FM, in Santa Monica, for producing an excellent, five-day documentary on LA before and after the Rodney King riots. Also, in a shameless plug, the present writer can be heard in an interview about the impact of the riots on the built environment is featured on the Wednesday show. (Archive of the entire five-show series is available on www.kcrw.org.)

Joel Kotkin is just thinking about the children. Too much, if you ask me. As you may recall, two weeks ago it was Wendell Cox who used the Wall Street Journal opinion pages to herald the "war" that California's urban areas are launching on the suburbs. For whatever reason, the Journal really has it cut out for California, because Kotkin's piece—which isn't actually an op-ed but rather a sycophantic quasi-interview  by Allysia Finley—levies similar criticisms of California's land use policies, but with some even more strained logic and offensive biases. I'd rather not make a career out of responding to erroneous analyses  of California's demise. But, as a loyal Californian and fan of truthfulness, I can't ignore this latest volley of claptrap. Cox and Kotkin both claim that policies that discourage suburban development and/or encourage dense urban development are undermining the notion that California is the promised land. This myth of the California dream is particularly powerful for Kotkin, who contends that California used to be "God's best moment." This is the blithe vision that none but the most daft have ever believed. The only cliché about California that is more abiding than sunshine is that of noir (itself a ponderous metaphor, but we'll go with it). Well known scholars such as Mike Davis has covered that ground extensively, as has almost every other honest student of California. So, to base public policy on a myth—or, more accurately—one half of a myth makes little sense. Does California have its prosaic problems? Sure it does. In fact, I conducted an insightful, cordial interview with Kotkin about two years ago in which he lucidly described some of California's demographic challenges. Let's look at those that Kotkin identifies this time. Kotkin's central claim is that the four million people who have reportedly left California in the past ten years have done so for two interrelated reasons. Restrictive local land use policies have made coastal areas unattainably expensive. So, rather than consign themselves to miserable outer suburbs, families are up and moving to states like Texas and Nevada because of low taxes. This trend has rendered urban areas like San Francisco and West Los Angeles "boutique" cities that cater only to the wealthy. I couldn't agree more with Kotkin's implication: a more diverse range of residents should be able to live in lovely places like San Francisco and Santa Monica. By all accounts, Kotkin should be overjoyed by Senate Bill 375. If all goes as planned, it will enable more people to live in expensive places near the coasts while relieving pressure on single-family home prices. Except, according to Kotkin, the policies that would promote housing—and de-boutiqueify these cities, by a) enabling more people to live in them, and b) creating more places like them—carry the air of a Stalinist plot. "Things will only get worse in the coming years as Democratic Gov. Jerry Brown and his green cadre implement their "smart growth" plans to cram the proletariat into high-density housing," writes Finley. Let's overlook the rhetoric of socialist class struggle and focus on supply and demand. If the coasts are such nice places, then it would stand to reason that, if offered sufficient housing stock, people would willingly live in them rather than subject themselves to "cramming." Alternatively, if those cities don't increase their density, then the only way to make them more diverse, and suitable for the middle class, is to kick out the rich and let families squat in their mansions. Viva la Revolucion! And good luck figuring out the espresso machine. It's clear, then, that Kotkin's objections to smart growth are not reasoned policy analyses. They are ad hominem attacks against a class of people whom he finds icky. According to Kotkin, if you're not rich then "your chances of being able to buy a house or raise a family in the Bay Area or in most of coastal California is pretty weak." You can't raise kids in multifamily dwelling in coastal California? Who does Kotkin think he is, Dr. Spock? I'd like him to tell his theory to my mother -- and to the millions of other parents who have raised perfectly decent children in tight quarters. On this point, it's worth quoting Kotkin in full: What I find reprehensible beyond belief is that the people pushing themselves live in single-family homes and often drive very fancy cars, but want everyone else to live like my grandmother did in Brownsville in Brooklyn in the 1920s. (This is the moment when, if I was John Stewart and this was The Daily Show, I'd be looking plaintively into the camera and stuttering, "But...he...just..said....") Let's make this clear: Kotkin is claiming that the reprehensible people who are unbelievably supporting SB 375 are the very same single-family-home dwellers whom he venerates. This would be contradictory at best--but it also happens to be wrong. In fact, the current governor (who had nothing to do with the passage of SB 375) famously lives in a multifamily building in Sacramento. Granted, the former governor lives on a property in–where else?—West Los Angeles that could comfortably fit several extra families. And that's just in his carriage house. (How convenient for him.) Regardless, who's the one who's making land more expensive? As for the legislature, I have no idea where they all live. Probably in one big houseboat on the American River. But I do know that SB 375's author, Sen. Darrel Steinberg, represents Sacramento (which is a city, last time I checked). And I know that, on average, Democratic voters are more likely to be urban dwellers and that Republican voters are more likely to be suburbanites. Kotkin must know this, unless he has forgotten where Nancy Pelosi is from. So the voters who have supported SB 375 are in fact more likely to already live in denser urban environments. They support SB 375 not because they want to make everyone else miserable but because they want more people to enjoy the urban experience. Most of us city folk don't give a rip about what happens in the suburbs; if they want to stay boring, homogenous, and sparely populated, that's fine by me. Meanwhile, I've never met Kotkin's grandmother, but I'm sure she's a very nice lady and would not like her grandson to say mean things about her home. But that's beside the point. All the people who currently live in Brownsville—because they're hipsters who dig the lifestyle or families who enjoy the inestimable financial benefits of participating in New York City's economy—would probably not like him to say mean things about their lifestyle either. Kotkin then offers up a notion that is both logically and grammatically nonsensical: "The new regime…wants to destroy the essential reason why people move to California in order to protect their own lifestyles." This is where it gets personal. I live in an apartment. So do most of the people I know. By and large, all of us are pleased with our lifestyles because we get to live in great cities and reap their estimable social and economic benefits even if we don't have vast backyards or fences to shield us from people who make us uncomfortable. I support more dense urban development not just because I think it's a fine way to live but also because it will, indirectly, reduce my cost of living if the supply of apartments—which are already in high demand—increases. This is how land use economics works. So let's recap: Kotkin disparages people like me for liking a lifestyle that he disagrees with. He thinks that more people should live where I live (i.e. near the coast) but he doesn't think that coastal areas should build more housing, and he definitely doesn't think that the state should promote that housing. Because then there'd be too much of a bad thing, even though people want that bad thing very badly if it's located in the right places. And that's why, according to Kotkin, California shouldn't have passed SB 375 and instead should have maintained the status quo. Or something like that. Kotkin also spews some nonsense about the evils of green energy, but, to be honest, I'm too exhausted to write any more. Something weird is going on here, and I'll be damned if I can figure it out. If Kotkin wants to discuss further, I invite him to join me in my fourth-floor hovel and witness my childless depravity firsthand. He can bring his own espresso. This article has been updated since its original publication on April 26. For an excellent numbers-based analysis of these issues, see Robert Steuteville's May 1 essay in Better! Cities and Towns.

Of California's roughly 37 million people, not a single one of them remembers a time when the state was not growing at a seemingly out-of-control pace. With the exception of the Depression and World War II years, our state has tripped over itself to build homes, roads, and entire cities nearly from scratch. We bulldozed one patch of desert, farmland, or chaparral only to find the surveyors marking up the next plot. It's been exhilarating, but also exhausting.  And, according to analysis of the latest Census data, it may be coming to an end.  In  "Generational Projections of the California Population By Nativity and Year of Immigrant Arrival,"  a USC team led by professors John Pitkin and Dowell Myers, project that the state will henceforth grow scarcely faster than your money market account does: about 1% per year. In the face of decreasing rates of immigration and birth, the report predicts growth of less than 10% per decade, inching up to 44 million people by 2028. That's as opposed to 26% growth in the 1980s and 14% growth in the 1990s. To put this shift in perspective, as recently as 2007, the state Department of Finance predicted that California would reach 50 million people by 2032. The new numbers push that date back to 2046.   As could be expected, the proportion of elderly people in the state is expected to rise. But with a lower birthrate, there will come a time when there is a greater proportion of working-age adults as well. That's good for the tax base, which will need to support services for all of those seniors.  The report identifies one profound cultural shift: in the coming decades, the majority of Californians will be native-born, starting at 53% in 2010 and rising from there. Perhaps this will, once and for all, put a stop the immortal California question, "you mean you're actually  from here?"  Mind you, 10% per decade with a base of 37 million is still a lot of people. The USC team contends, though, that this pace will give planners a chance to actually plan rather that simply keep up.  That's good news for infrastructure and preservation of open space. But, in a roundabout way, could it be bad news for smart growth?  Even though current strategies such as the smart growth plans of SB 375 are designed to reduce the impacts of growth--on a per capita basis--they still anticipate and, indeed, rely on the occurrence of growth. The Sustainable Communities Strategies do not, contrary to the claims of critics, call for forced marches from the suburbs to center cities. Rather, they assume that urban housing will fulfill a predicted demand for more housing overall. But, with fewer Californians, that's fewer people to inhabit urban infill projects and fewer people to ride public transit.  A transformation of California's urban landscape may, therefore, happen more slowly too. In some places, planning may take the form of retrofitting and updating rather than expanding.  This isn't to say that California is going to grind to a halt or become Japan, where the population is predicted to plummet in the coming decades. At best, it means that we may, finally, get to enjoy that mellow, laid-back lifestyle that we all came here for in the first place.

State Controller John Chiang sent what many cities consider to be an ominous letter, advising them to hand over assets that they may have acquired from redevelopment agencies. The letter, dated April 20, instructs cities, counties, and other agencies to cast a wide net to identify assets that may have been improperly transfered following the January 1, 2011 effective date of AB 1X 26, the bill that calls for the dissolution of redevelopment agencies and liquidation of their assets.  Cities and other entities are ordered to "reverse the transfer" and return all applicable assets to successor agencies, which are charged with liquidating such assets. The order refers to assets transfered both "directly and indirectly" between RDAs and parent jurisdictions. Many agencies had reportedly formed hasty loan agreements and put real assets on the books of their host jurisdictions presumably in order to shield those assets from liquidation.  The order "applies to all assets including, but not limited to, real and personal property, cash funds, accounts receivable, deeds of trust and mortgages, contract rights, and rights to any payment of any kind." The only exemption is if such assets were involved in a contract with a third party, such as a developer, as of June 28, 2011.  The letter warns that cities and counties can expect audits "in the coming weeks." The League of California Cities has announced that its Post-Redevelopment Working Group is working on a response to the letter and will advise cities how to proceed.  For the full text of the letter, please click here .

The adjective "short" best describes California's land use and CEQA statutes of limitation, and Okasaki v. City of Elk Grove illustrates this principle perfectly.  From CEQA's 30- and 35-day limitation periods, to the 90-day limits of the planning and zoning matters (Government code section 65009), to the Subdivision Map Act (Government Code section 66499.37, time waits for no litigant. The most recent case addressing the planning and zoning law wrestles with the interface of the 90-day statute in Government Code section 65009, with the timeline found in Code of Civil Procedure section 1094.6. These latter timelines call for an extension of time periods in circumstances in which the petitioner has requested the agency to prepare the administrative record, in which case, the statute extends to 30 days from the delivery of the record. (Section 1094.6(d)) Okasaki challenged a variance granted to a neighbor by the City of Elk Grove. Roughly one week after the city's decision, Okasaki requested that the city prepare the administrative record. Eventually, 90 days passed without the city preparing the record and without Okasaki having filed suit. Okasaki eventually filed suit soon after the 90-day period passed.  The city successfully demurred on the basis of Government Code section 65009. The court of appeal affirmed. However, Okasaki argued the timeline for filing the writ was extended by the city's failure to deliver the record. Not so, according to the appellate court. Rather, in reconciling these two provisions, the appellate court noted that 65009 was the more specific section and therefore prevailed over the terms of the broader provisions found in Code of Civil Procedure section 1094.6. The Case:  Okasaki, et. al.  v. City of Elk Grove, et. al.  (February 24, 2012, C066203) Cal.App.4th  The Attorneys: Jerry Sandefur for Plaintiffs and Appellants. Best Best & Krieger and Stacey N. Sheston for Defendants and Respondents. Wiliam W. Abbott is a partner in the Sacramento law firm of Abbott & Kindermann, LLP.

The premise behind the categorical exemptions in the California Environmental Quality Act for infill and single-family projects is that projects in relatively dense, established urban areas are unlikely to create major impacts. According to a recent decision, this premise has its limits.   The City of Berkeley is not known for lavish hillside homes the way that, say, Beverly Hills is. And yet, recently the city's Board of Zoning Adjustment had granted a categorical the construction of what can only be described as a mansion. Community members fought the project, filing Berkeley Hillside Preservation v. City of Berkeley .  Property owners had applied for permits to demolish an existing home on a 29,714 square foot lot and to construct a 6,478 square foot home along with an attached 3,394-square foot, 10-car garage. The lot is a hillside lot with an approximately 50% grade. Based upon CEQA exemptions for infill and for construction of new small structures, the Board of Zoning Adjustment approved the permits.  The proposed construction was supported by neighbors, but other interested parties appealed the approvals to the City Council, claiming that the CEQA exemption was granted inappropriately. A geotechnical engineer, Dr. Lawrence Karp, submitted a letter indicating that he had reviewed the building plans, and that he was familiar with the site based upon his work on other building sites in Berkeley. In the letter, Karp contended that additional benching would be required, that this was not reflected on the plans, and that the site potentially had some exposure to seismic risk. Karp also indicated that additional vegetation removal was required that was not otherwise reflected on the plans. Karp concluded by indicating that the project would likely have significant impacts during construction and operationally due to seismic risk.  Two engineers submitted letters on behalf of the applicants (at least one was a geotechnical engineer). They argued in part that Karp misread the plans and that the project was appropriate for the site. The City Council was presented with conflicting evidence as to relative size of the proposed structure to other homes in Berkeley. The City Council denied the appeal, and the opponents filed suit. The trial court ruled for the city and applicant, and the neighbors appealed again. The key issue on appeal was whether or not the city appropriately applied a CEQA exemption in light of all of the evidence. The appellate court indicated that judicial review requires a two-step inquiry. First, the court determines if there are unusual circumstances. As applied here, the appellate court found that the evidence was that the construction was unusual based upon size. The evidence most favorable to the city was that less than .4% of existing homes in the city were larger (although the record included less favorable evidence as well). The city argued that the relevant consideration in determining unusual circumstances was the vicinity of the proposed construction, and from this perspective, the proposed size was not unusual. Rejecting this approach, the appellate court directed that the proper point of focus was the broader category of similar structures for which the exemption was intended, not just those in the vicinity.  Once this test is satisfied, the inquiry shifts to whether "there is a reasonable possibility that the proposed construction will have a significant effect on the environment due to the unusual circumstances of its size." The appellate court found that the opponents had made the requisite showing of a fair argument through the Karp letter. The fact that there was evidence in favor of the city's decision was not conclusive under the fair argument test. Accordingly, the appellate court determined that an EIR was required. Comment:  The issue at hand is not whether or not a property owner has an inalienable right to build a ten-car garage or a 7,000-square foot house. What is important about this decision is that it highlights the barrier that CEQA poses to infill and to the revitalization of existing urban areas. CEQA prioritizes the status quo over change. If we are serious about creating vibrant urban communities, then we need vigorous CEQA reform. It's not rocket science to figure out why development steadily marches onward at the suburban fringe: defenders of the status quo file CEQA lawsuits, cows rarely do.  The Case:  Berkeley Hillside Preservation v. City of Berkeley (February 15, 2012, A131254) 203Cal.App.4th 656. The Attorneys:  For Appellants: Susan Brandt-Hawley For Respondents City of Berkeley: Zach Cowan, City Attorney, Laura McKinney, Deputy City Attorney For Respondents and Real Parties in Interest Mitchell  Kapor, Freada Kapor-Klein, and Donn Logan: Myers, Nave, Riback, Silver & Wilson, Amrit S. Kulkarni, Julia L. Bond William W. Abbott is a partner in the Sacramento law firm of Abbott & Kindermann, LLP.

The definition of wetland would seem to be self-evident: wet land. If only it were that easy in California.  From vernal pools that slowly diminish in the Central Valley heat to brackish estuaries separating ocean from land, California's topography includes some of the most varied types of wetlands imaginable. Their numbers and varieties baffle that which governmental regulations such as the federal Clean Water Act describe.  A new proposed policy, released in preliminary draft form by the Water Resource Control Board, seeks to preserve the state's remaining wetlands and tighten controls over how permits to impact wetlands are issued.  The product of seven years of discussions and scientific study, the Preliminary Draft Wetland Area Protection Policy—based, in part, on the federal definition—is being hailed by environmentalists but already raising anxiety among developers. It defines wetlands according to the following criteria:  • is continuously or recurrently inundated with shallow water or saturated within the upper substrate;  • has anaerobic conditions within the upper substrate caused by such hydrology; and  • either lacks vegetation or the vegetation is dominated by hydrophytes. These criteria were recommended by the Water Board's Technical Advisory Team, which consisted of a team of 15 scientists with expertise in various aspects of wetland ecology and geology.  Only 9% of the state's wetlands remain as compared to the days of Spanish settlement. For much of the 20th century, the policies of the state and of the Army Corps of Engineers was to fill wetlands in order to make lands arable and developable. This policy seeks to reverse that trend while preserving the diversity of the state's wetlands. In order to account for unusual wetlands that occur in California's arid climate, the definition includes the following caveat: "Places lacking vegetation but otherwise meeting the hydrology and substrate criteria for wetlands are defined as wetlands…(to include) tidal flats, playas, some river bars, and shallow non-vegetated ponds." That accounts for some of the more arid regions of the state and some of the wetland types that typically don't have vegetation," said Eric Stein, Biology Department Head at the Southern California Coastal Water Research Project and member of the Technical Advisory Team.  The draft policy also includes a wetland delineation method, a wetland assessment and monitoring framework, and authorization procedures for dredge and fill discharges to waters of the state The draft has been released "for information purposes" and will not be subject to public comment for several more weeks. Water Board officials expect that it will undergo revision before the board votes on a final draft.  Though rhetoric cannot capture every variation and account for every potentially valuable natural resource, scientists say that this definition will serve the desired purpose, especially compared to status quo. Thus far, the state has not adhered to an official definition. Different agencies, from the Coastal Commission to the Department of Fish and Game, have often relied on their own notions of what constitutes a wetland.  As a result, say state officials, the process for protecting wetlands—or, conversely, for issuing permits to dredge, fill, and discharge—has been haphazard at best.  "It's difficult to manage a resource without knowing exactly what it is and being able to identify exactly what it is," said Bill Oreme, chief of the Water Board's Wetlands and 401 Unit.  The Water Board ordered the drafting of the new policy with three goals in mind: 1) establish clear, uniform criteria for the application, review, and approval of permits to discharge dredged or fill material to waters of the state; 2) to achieve no net loss of wetlands; 3) provide a common framework for the monitoring and assessment of wetland areas.  All of these goals hinge on the definition of what a wetland is, but some say that the new definition does not go far enough to achieve them. "We think it's far too narrow," said Colin Kelly, state attorney at Orange County Coastkeeper.  "If you look at other sections of California state regulations, there aren't as many qualifiers on what a wetland is." Kelly said that those qualifiers could end up excluding important resources.  Until recently, the Clean Water Act was interpreted to cover a wide variety of wetlands, but no longer.  The federal government's definition has prevailed over waters covered by the Clean Water Act. But even that has been a moving target, thanks to a pair of recent Supreme Court decisions—Solid Waste Agency v. U.S. Army Corps of 2001 and Rapanos v. U.S. of 2006—that ruled that the act applied only to tributaries of navigable waterways. This ruling effectively reduced the amount of waters that fall under the protection of the Clean Water Act and forced the state to enact its own policy to protect important waters that are now excluded from the CWA.  State officials could not merely adopt federal standards, and apply them to all potential waterways in the state, because of the variety and relative preciousness of the state's wetlands. Biologists contend that wetlands often serve as crucial habitats for all manner of species, particularly migratory birds. Thus, even an ephemeral vernal pool could provide safe harbor in an otherwise arid landscape. Meanwhile, coastal wetlands are considered valuable for flood control, water filtration, and recreation.  Though officials stress that the policy and definition remain in draft form, developers are anxious about changes that could arise if and when a final version is adopted.  "Our principle concern is the potential duplication of federal, state, local regulations," said Mike Winn, president and CEO of the Building Industry Association of California. "It's already a very complicated process and this doesn't seem to be simplifying matters at all.  It contradicts and makes what for decades now has been a painful but at least somewhat predictable process less predictable." The board also hoped to bring its definition of wetlands in line with that of the Clean Water Act; however, some say that there are enough discrepancies – such as the occasional exclusion of the vegetation criterion – that permit applicants may end up doing more work.  "We have a really serious concern with the process of having to go through two wetland permitting processes, not just one," said Winn. "It looks to me like it may be just enough different to make it confusing…and perhaps burdensome," said Elizabeth Lake, partner at the law firm of Holland & Knight.   Despite the trepidation that many developers feel any time the state changes a policy, state officials insist that the new policy might actually ease the burden on developers who apply for permits. Officials say that the new definition will neither increase nor decrease the amount of resources that lie under the state's protection, and they have pledged to make the permitting process more streamlined.  Thus, developers will not necessarily find more lands off-limits, and even if applications are to be denied, they will be denied more quickly than they are under the current system.  "There's going to be no difference between what we presently have jurisdiction over and the condition after the policy," said Oreme.  "What you're going to see is that areas that are regulated today are probably very similar to areas that are regulated under this policy," said Stein.  Oreme said that currently each of the state's nine Regional Water Boards follow their own criteria, meaning that any developer who works in more than one region faces different policies.  "I think developers should find a lot of advantages to this policy," said Oreme. "This policy will establish a set of criteria that will be uniform across all water boards."  Although the Supreme Court took many wetlands out of federal jurisdiction under Section 404 of the Clean Water Act, many wetlands areas remain federally protected. The Water Board has made efforts to ensure that its new definition matches up with that used by the Army Corps of Engineers. In cases when the jurisdictions overlap and a developer must submit applications to both a regional water board and to the Corps.  The Corps has therefore been involved with the drafting of the new policy and has pledged its commitment to facilitate an efficient permitting process.   "We will continue to work with the State on its proposed policy to reduce duplication, streamline reviews and make decisions about protecting wetlands that are consistent and reasonable, and plan to submit further comments once the Draft Policy is open to formal public review," said Michael Jewel, regulatory chief for the U.S. Army Corps of Engineers Sacramento District. Despite the state's mandate to incur no net losses, both the Corps' and the Water Board's statements of purpose indicate that they are committed to "reasonable economic development."  Contacts & Resources:  State Water Resources Control Board Clean Water Act Section 401 Program Colin Kelly, Staff Attorney, Orange County Coastkeeper, 714.850.1965 Elizabeth Lake, Partner, Holland & Knight, 415.743.6969 Bill Oreme, Chief, Wetlands & 401 Unit, State Water Resources Control Board, 916.341.525 Eric Stein, Biology Department Head, Southern California Coastal Water Research Project, 714.755.3233 Mike Winn, President & CEO, Building Industry Association of California, 916.443.7933

The fate of thousands of would-be redevelopment projects now rests in the very busy hands of the California Department of Finance. Working with an augmented crew, the department has so far received roughly 200 Recognized Obligation Payment Schedules (ROPS) and has so far sent back roughly 20 for review by their respective successor agencies. Letters such as these ( pdf ) have gone out to those cities so that they can amend their ROPS or justify the listed expenditures.  Department spokesperson HD Palmer could not offer definitive specific numbers in part because the action has been furious this week. Successor agencies were supposed to have submitted their ROPS to DOF by April 15. Not all of them submitted on time, however, so more ROPS are arriving by the hour. DOF has three days to review and respond to ROPS, all of which must be reviewed by May 1 at the latest are to pay their bills.  "It's in their interests to submit them because, under the provisions of the bill, expenditures can't be made after May 1 unless they're approved," said Palmer.    ROPS are the list of projects that successor agencies believe to be eligible for continued funding under AB X1 26, the law that ordered the dissolution of redevelopment agencies and guides the wind-down process.  Finance is charged with making sure that all tax increment monies go back to the state, such as AB X1 26 allows. The means that they are on the lookout for projects that were approved after a June 27, 2011 deadline or, commonly, loans made to cities by redevelopment agencies after the governor announced his intention to dissolve agencies in January 2011.  Some cities whose ROPS are under review include:  Riverside, with over $150 million in expenditures that DOF claims do not adhere to AB 1X 26; they include over $100 million in loans and grants made between the city and redevelopment agency Scotts Valley, with $3.6 million in loans to the city Orange, with $7 million for a project not approved until November 2011 San Leandro, with a $2 million loan and nearly $9 million in cooperative agreements If Finance ultimately refuses to approve funds for these items -- and similarly questionable expenses at other cities -- the projects will be among the thousands of redevelopment projects that are already moribund.   With roughly 400 successor agencies and ROPS's varying in length -- from hardly any projects in small towns to potentially thousands in large cities -- the department has called in reinforcements. "We knew we were going to have to do a significant amount of review in a relatively limited time frame. That's why we a) redirected members of our audit staff to work full-time on this, and b) brought back some retired (employees)," said Palmer. "We're confident that we'll be able to do the kind of reviews that are necessary." Palmer said that roughly 60 staff people are working full-time to address the flood of ROPS.

Yesterday, at Day Three of the APA's National Planning Conference, a panel of planning directors and other city officials from Southern California cities offered their take on a range of issues – good and bad – that cities in the region are facing. The panel was designed for a non-California audience, and the panelists' take on statewide trends was telling.   A few highlights:  Nowhere is the housing crisis more acutely visible than in the Inland Empire, where M. Margot Wheeler presides over Community Development for the City of San Bernardino . She spoke about the paradox of needing to build more affordable housing at the same time that vacant, underwater tract homes are rotting on their foundations:  "Was the housing meant to be affordable or did it just become that way? Affordable housing is the flip side of redevelopment. It's the 20% set-asides.  Redevelopment is about chasing the almighty dollar of sales tax and fiscalization of land use: car dealers and regional malls. Single-family housing never pays for itself." "With the demise of set-asides, the likelihood of developing affordable housing is going to be a more onerous task than it ever was before." Wheeler suggested the development of accessory units such as granny flats and garage units, even though they often run afoul of zoning codes and draw the ire of residents. But she said those voices must not be allowed to hold sway and insisted that the "retrofit of existing neighborhoods is going to be crucial."  Kathleen Garcia, planning director in Del Mar , had some choice words for public participation and, implicitly, for NIMBYism. She began by describing a one-acre development that – in a city of just over 4,000 residents – was subject to 68 public meetings and then had to go to a popular vote. She noted that the residents who would stop a development like that do not necessarily represent the entire community.  Fullerton planning director Al Zelinka offered some incisive commentary about the relationship between government and constituents. At first blush, he seems to be levying harsh criticism on residents for being ignorant. But that's only half the story. He's also implying that government needs to be more clear and, if it wants constituents who can offer useful input, it has to take initiative to educate them.   "It's amazing to me how uninformed, uneducated, unaware the public is about where the money comes from, how it's supposed to be used, and how the budgeting process happens…. This moment of economic hardship is our time to have an informed, educated public and to lead the conversation about where our city is going to go." Representing "America's Finest City"—which he said had been rechristened "Enron by the Sea," San Diego development services director Kelley Broughton, spoke about the challenge of measuring success. Performance metrics are always tough in the public sector, which does not follow the benchmarks of profit and loss. "In private sector, you're focused on getting things done.  In public sector, it's harder to tell." Broughton noted that the city has "put in tools 20 years ago that haven't been used yet," meaning that no matter how good the tools are, it's impossible to yet give them full credit.  Alan Bell, deputy planning director in Los Angele s, was asked to speak about the California Environmental Quality Act, whch he described as "the law that we love to hate."  "The whole environmental clearance process has been seized by those who want to stop projects.  CEQA is the weakest link and the most expeditious way to stop a project. It's not about good planning or about what is good for a particular community. It's about trying to meet one's own agenda." "For big cities, that's ironic, because urban infill makes the most sense.  We want to preserve deserts and farmland. That means developing in areas that have the infrastructure to support that. Yet CEQA enables contestants to subvert that process." To illustrate what he considered the absurdity of CEQA, Bell cited the recently released 10,000-page environmental report for Los Angeles' proposed Farmers Field football stadium. "Who is going to read?" he asked. "No one." Bell noted that CEQA's scale contradicts the very mission of forward-thinking planning: "The whole law is oriented towards project planning, not community planning. So it's not serving the larger purpose that planners want." Amy Bodek, director of development services and former redevelopment director in Long Beach , illustrated the bureaucratic impacts of the demise of redevelopment. She spoke of layoffs, reassignments, and other tumult associated with disbanding a department that had previously been humming along with a $120 million annual budget.   Santa Monica planning director David Martin spoke about his city's process for creating development agreements for projects that are not being developed by-right. He described an idealized sequence by which an agreement is discussed at no fewer than seven meetings, before bodies including the planning commission and city council. He admitted that, in reality, the more controversial a project is, the more likely it is to require far more discussion.  Carol Barrett, community development director in Berkeley , said that she once half-jokingly asked her city manager if she could "Ignore email sent between 1am and 5am." She said that, for the most part, "it was not persuasive, reasoned discourse" that, she felt, was not productive for the palnning process. But Barrett said she continues to heed all public input because "we persist with public engagement because it's the right thing to do.

LOS ANGELES -- For all the efforts that California has expended to embrace regional planning , it turns out that regional planning may already be outdated.  At this morning's APA National Conference session on "megapolitan America" Robert Lang of the University of Nevada-Las Vegas posed a question: "What the hell does Reno have to do with San Francisco?" What the hell, indeed.  According to Lang and the University of Utah's Chris Nelson, co-authors of the recently published Megapolitan America: A New Vision for Understanding America's Metropolitan Geography , California's capital of tech, sophistication, and urbanity ought not ignore the northern Nevada capital of bowling, divorce, and sprawl – nor vice-versa. According to Lang, anything that happens in San Francisco, or, more specifically, the Port of Oakland, has direct impacts on the economy of Reno. The more ships that come into the port—which was dredged a few years ago, with an immediate increase in traffic – the more trucks and trains pass through Reno, where they unload cargo for redirection to all points throughout the intermountain West.  Nelson's and Lang's point is that the emerging units of economic growth—as well as environmental protection and transportation networks—are not cities, metro regions, or even MPO regions. They are "megapolitan" regions. They identify 23 megapolitan regions across the country, including the Sierra-Pacific region, plunging inland from San Francisco to Reno, and Southern California, stretching roughly from Santa Barbara to the Mexican border. These regions pursue the geographer's Holy Grail of grouping contiguous places according to function and affinity rather than by de jure political boundaries (cf. Joel Garraeu's Nine Nations of North America or Wilbur Zelinsky's Cultural Geography of the United States ).  Lang and Nelson claim that these regions already act as de facto economic, and, sometimes, cultural units whose components share common interests, complementary strengths, and overlapping commuting patterns.  They include everything from the Seattle-Portland region to Colorado's Front Range to the original "megalopolis" lining the Eastern Seaboard. Often, these regions function in spite of themselves.  In particular, American urban areas have not always embraced planning and coordination within discrete metro regions, much less between metro regions.   California's four biggest metro regions are already trying to reverse this trend, in the name of mitigating climate change. After four years of yanking and tugging, regional Sustainable Communities Strategies are coming to fruition, often with great fanfare (and sometimes, in the case of San Diego's SCS, some litigation for good measure).  If the thought, though, of creating inter-regional – and even inter-state – plans makes your head hurt, I'm sure you're not alone.  For starters, California and Nevada do not exactly like each other. They can't even agree on how to preserve the one undisputed jewel that they share: Lake Tahoe . On all other matters, California tends to treat Nevada with indifference and Nevada often treats California with derision. That's especially true in the Reno area, where faded casinos have suffered from the rise of Indian casinos in northern California.  Lang and Nelson point out, however, that northern Nevada's economy relies more on trucking than on gambling. "The logistics industry is the only thing holding Reno together," said Lang.  The eighteen-wheelers coming over Donner Summit therefore give the regions – the Bay Area, Sacramento, and northern Nevada alike – to cooperate. As Lang said of distinction between the economically linked cities of Phoenix and Tucson, "to a German looking to invest in solar energy, they're all just Saguaros and Circle K's."  You can only imagine what they'd think of Reno. But Lang's point is that it doesn't matter. Traffic is traffic and money is money. If California wants to prosper in the next generation, it not only has to figure out how to implement its regional plans well, but also how to create plans between regions. That means that ABAG, SACOG, and Washoe County need to reach out to each other, as do SACG and SANDAG. Daunting as this prospect may sound, at least California is ahead of the game, thanks to SB 375. We have a vocabulary for talking across political boundaries. I can only imagine what will happen when Boston tries to cooperate with southern New Hampshire, or Cleveland with Pittsburgh.  It's not like we in California don't have enough to do already, but if history is any guide, then there's plenty of reason to think that Nelson's and Lang's predictions of an inter-regional future will indeed come to pass.  Now someone has to tell Nevada.