THE STATE DEPARTMENT OF WATER RESOURCES has settled a lawsuit filed by the Planning and Conservation League over the 1995 "Monterey Agreement," which, among other things, spelled out how State Water Project (SWP) water would be allocated during droughts. The settlement calls for the agency to more fully disclose its ability to deliver water, including preparation of a biennial report to all SWP contractors, and all cities, counties and regional planning agencies within the State Water Project area. Additionally, the word "entitlement" in SWP contracts will be replaced with the term "Table A Amount" to reveal more fully the system's capacity. The settlement clarifies the scope and process for a new environmental impact report for the Monterey Agreement, and names the Department of Water Resources as the lead agency. Furthermore, the department must issue guidelines for permanent water transfers and must conduct negotiations with State Water Project contractors in public. The settlement is available on the department's website, www.montereyamendments.water.ca.gov WITH AN EYE toward providing local governments more control over Indian casino development, Gov. Davis has asked 61 California Indian tribes to renegotiate the state's three-year-old gambling compact. Although he has declined to be specific about how much authority local governments should have, Davis has suggested that Indian casinos should be subject to the same land use controls as any other project. Currently, local governments have no authority over casino developments unless the projects need public infrastructure. Tribes, which are sovereign, have been cool to the idea of letting local governments — typically counties — control casino development. The relationships between tribes that have casinos or plan to build them, and local governments have been very mixed. How far Davis will press the local control issue is unknown because the governor also wants the tribes' consent to tax the casinos' slot machines to help cover the state budget deficit. LOS ANGELES MAYOR JAMES HAHN has taken steps to block the expansion of the Sunshine Canyon Landfill in Granada Hills. Hahn directed the city's Environmental Affairs Department not to forward Browning Ferris Industries' (BFI) application for landfill expansion to the California Integrated Waste Management Board, even though the application has been deemed complete. While the city stalls on the BFI application, it is seeking proposals to haul trash to out-of-town garbage dumps, probably in the desert. Browning Ferris contends the city has no right to delay the landfill expansion and says transporting waste to the desert would more than double disposal costs. Expansion of the Sunshine Canyon facility, along Interstate 5 at the northern boundary of Los Angeles, has long been a controversial issue and was even a minor factor in the proposed San Fernando Valley secession. The garbage dump has operated for years in unincorporated Los Angeles County. In 1999, the city said it would permit BFI's expansion of the dump inside the city limits, but Hahn vowed to block the project upon being elected mayor in 2001. EXPANSION OF THE PORT OF LOS ANGELES is back on track, as residents of San Pedro and Wilmington have settled a lawsuit against the City of Los Angeles. Under the settlement that was announced in March, the Port will spend $60 million to address air pollution and aesthetic concerns over a new China Shipping Holding Company terminal and the port as a whole. Specifically, the Port will spend $20 million during the next four years to reduce air pollution at the port, $20 million to mitigate aesthetic impacts to nearby residents, and $10 million to clean up trucks serving the port. The Port also will replace four existing 16-story cranes with shorter models. The Port further agreed to prohibit trucks operating in the China Shipping yard from having diesel engines, and to provide electricity to docked ships so the vessels do not keep their diesel engines running while in the port. Last fall, Port area residents won a California Environmental Quality Act lawsuit against the city, forcing the Port to halt work on the nearly complete project (see , December 2002). A TWO-YEAR DISTICT ATTORNEY'S INVESTIGATION into development of the Belmont Learning Center in downtown Los Angeles has found no criminal wrongdoing. The report, released in March by Los Angeles District Attorney Steve Cooley, identified "unsound business practices and serious problems with the LAUSD school development process" and made recommendations to prevent future problems. The Los Angeles Unified School District (LAUSD) has spent about $160 million on the nearly finished high school. Construction has stopped twice, first in 1999 because of the discovery of methane gas on the site and again in 2002 because of concerns about an earthquake fault. The school for 5,000 students has never opened. A 1999 internal school district investigation suggested there had been criminal malfeasance, and during the 2000 election campaign, Cooley accused then-District Attorney Gil Garcetti of mishandling a Belmont probe. Cooley's $1.6 million investigation noted a number of errors by the district and some of its contractors but did not allege any crimes. The report is available on the district attorney's website, http://da.co.la.ca.us. THREE MISDEMEANOR CORRUPTION CHARGES were filed in March against former Pittsburg City Councilman Frank Quesada. The Contra Costa County District Attorney's Office alleged Quesada was in debt by $370,000 to developer Albert Seeno Jr. and his brother Tom Seeno while Quesada voted to approve a number of Seeno developments, including part of the 2,900-unit San Marco subdivision. Quesada, who lost a re-election bid last November, allegedly borrowed the money from Seeno Enterprises starting as early as 1981 for a variety of personal and business purposes. The revealed the apparent conflict of interest last fall. Arraignment is scheduled for this month, and the reported that Quesada will plead no contest. The district attorney's office has indicated it will seek a sentence of community service, rather than fines or jail time. MANCHESTER RESORTS has filed a claim against the City of Oceanside for $15 million, alleging the city broke its contract with Manchester for development of a beachfront hotel. The claim is the first step toward litigation. The city actually approved the controversial hotel, but the California Coastal Commission last year refused to let the city amend its Local Coastal Program to permit the project (see , July 2002, , November 2000). After the Coastal Commission unanimously rejected the 400-room, 12-story hotel, the City Council determined the city's contract with Manchester was void and the council refused to consider a Manchester proposal for a scaled-down project. A FEDERAL JUDGE has given the U.S. Fish and Wildlife Service one year to designate critical habitat for the endangered Santa Ana sucker fish. The ruling in a lawsuit filed by environmental and angling groups could threaten flood control, hydroelectric, wastewater disposal and water treatment projects proposed for the Santa Ana River in San Bernardino and Orange counties. THE SONOMA COUNTY POPULATION of the California tiger salamander was listed as endangered in March by the Fish and Wildlife Service. The listing decision follows an emergency listing the agency issued last year to settle a lawsuit filed by the Center for Biological Diversity. The latest decision angered Sonoma County developers and some local officials, who fear development could slow as a result. THE FISH AND WILDLIFE SERVICE and the state Department of Fish and Game have taken title to 16,500 acres of salt ponds in the southern San Francisco Bay. The federal and state governments, and four private foundations provided $100 million to purchase the salt ponds from Cargill Salt (see , July 2002). A team of federal and state officials now expects to spend up to five years planning for restoration of the salt production ponds to marshland. STATE HOUSING and Community Development Director Julie Bornstein will resign effective May 1. Bornstein announced she will become the founding director of the new Keston California Infrastructure Institute at the University of Southern California.

A takings lawsuit by Lake Tahoe area property owners against the Tahoe Regional Planning Agency (TRPA) has been tossed out by the Ninth U.S. Circuit Court of Appeals because the court had already ruled on the matter. Since 1984, litigation filed by the property owners association, the Tahoe-Sierra Preservation Council, has resulted in 11 published opinions, including the latest one, which was the fifth ruling from the Ninth Circuit. The litigation has challenged in numerous ways a regional plan that TRPA adopted in 1984 and revised in 1987. "Although the Association attempts to frame its complaint in terms of new injuries caused by new acts, this action is in reality a prayer for relief from wrongs allegedly done by the Agency in connection with actions it took to implement the 1987 plan during the period from 1987 through 1991," Justice Stephen Reinhardt wrote for the unanimous three-judge panel. "We have addressed many of these allegations before." The court did leave the door open for a group of property owners regarding TRPA's application of the 1987 plan to their particular properties. The court held that those claims were not ripe because none of the property owners had submitted an application for development under the plan. Spurred by Lake Tahoe's diminishing clarity and evidence that development was causing the environmental degradation, TRPA adopted a regional plan in 1984. But the plan lasted barely two months before a federal court blocked its implementation at the State of California's request. In 1987, TRPA adopted a revised plan. The plan established an Individual Parcel Evaluation System (IPES) that was intended to rate the suitability of parcels for development. Parcels with an IPES rating above a certain level were eligible for one of 300 annual building permits. In 1989, TRPA implemented the ranking system, requiring an IPES score of 725 for a parcel's development. The system essentially banned development on parcels in riparian areas known as Stream Environment Zones. In 1999, TRPA lowered the IPES threshold in Nevada's Washoe and Douglas counties because 80% of the sensitive parcels in those counties had been permanently protected from development — a 1987 plan requirement for adjusting the IPES figure. The agency maintained the IPES figure at 725 in California because less than 80% of sensitive parcels had been permanently protected. In January 2000, the Preservation Council and 252 individual members sued over TRPA's decision to maintain the IPES threshold in California at its original level. The landowners argued that TRPA's regulatory scheme was a categorical taking that did not advance a legitimate state interest. They contended that TRPA's decision to lower the IPES threshold in Nevada but not California was a denial of equal protection. The landowners further challenged the practice that allowed property owners who scored within 10% of the IPES line to become eligible for a building permit if they provided mitigations or paid a mitigation fee. U.S. District Court Judge Lawrence Karlton divided the landowners into three categories: those in a Stream Environment Zone (SEZ), those ranked well below the IPES line, and the "10% plaintiffs." With regard to the takings allegations, Judge Karlton ruled that the statute of limitations for the SEZ property owners began to run in 1989, when TRPA notified them that their land could not be developed. The statute of limitations for those below the IPES line began to run in 1990, when TRPA fully implemented the system. Those statutes of limitations had long since expired, and nothing TRPA did during 1999 triggered them anew, Karlton ruled. An "as applied" challenge of the 1987 plan by the 10% plaintiffs was not ripe because no one had attempted to use the system, he ruled. As for the equal protection claim, Karlton ruled the lawsuit was too late because the statute of limitations began to run in 1987 when TRPA adopted the revised plan. The Preservation Council appealed. The Ninth Circuit upheld Karlton's ruling in its entirety, but on a different basis. The appellate panel ruled that all claims except those of the 10% plaintiffs were barred by the doctrine of res judicata, which means that the matter has already been decided. According to the court, res judicata depends on three things: similar claims arising from "the same transactional nucleus of facts," a final judgment on the merits, and the same parties. The latest Tahoe lawsuit passed the three-part test, the court ruled. First, the court ruled, the claims asserted in the present case came from the same transactional nucleus of facts that gave rise to two earlier rounds of litigation. " o action by the Board in 1999 was even colorably inconsistent with the understanding that the Association should have had in 1990 as to how the system would function," Justice Reinhardt wrote. "Indeed, in its 1991 complaints, the Association protested both the enactment of the 1987 plan and its implementation." Second, those claims were resolved by the district court, which held that they were barred by the statute of limitations. The Ninth Circuit upheld the decision in , 216 F3d 764 (see , July 2000). Third, the court ruled, the parties in this suit and the previously resolved case were the same. The Preservation Council has been the lead plaintiff in all of the litigation, and every individual plaintiff in the case at hand is a member of the organization. Further, 36 individual plaintiffs in the current case were also named plaintiffs in the earlier rounds, the court determined. As for the 10% plaintiffs, the court deemed their claims were not ripe for a decision because none of the plaintiffs had pursued the mitigation program. The court sited the U.S. Supreme Court's decision in , 520 U.S. 725 (see , June 1997). " he Supreme Court clearly explained that a regulatory takings claim is only ripe if the plaintiff ‘demonstrates that she has both received a "final decision regarding the application of the challenged regulations to the property at issue" from "the government entity charged with implementing the regulations" and sought "compensation through the procedures the State has provided for doing so,"'" Reinhardt wrote. "The 10% Plaintiffs have not satisfied the first requirement." The Case: , No. 00-16660, 03 C.D.O.S. 1736, 2003 DJDAR 2257. Filed February 28, 2003. The Lawyers: For Tahoe-Sierra Preservation Council: Lawrence Hoffman, (530) 583-8542. For TRPA: E. Clement Shute, Shute, Mihaly & Weinberger, (415) 552-7272.

After two years of life under the Bush Administration, what we might call the "General Plan" for American is in the midst of a serious update. And it's not surprising that "smart growth" doesn't appear to be on the list. After all, urban policy nowadays means homeland security, not livable neighborhoods. And it's a little hard to argue about all the problems of cities when cities are doing so well. Cultural trends have combined with smart growth planning initiatives to make central cities attractive places again. Even downtown Los Angeles, arguably one of America's most inhospitable central districts, is experiencing a boom in housing demand and cultural life. But maybe the biggest reason that smart growth isn't on the administration's agenda is simply that so many of the administration's friends are making a business out of opposing it. Under the banner of ideologues like Randal O'Toole, Director of the Oregon-based Thoreau Institute, and David Strom of the Taxpayers League of Minnesota, the anti-smart growth movement has begun the air attack against smart growth and may soon send in the ground troops as well. Conferences to rally the anti smart-growth constituency have been picking up in number. This new movement is busy working out talking points and collective strategies. At a three-day convention in February called "Preserving the American Dream," Strom called smart growth leaders "pointy-headed intellectual fascist ." At another symposium in Washington D.C. titled "Preserving the American Dream of Mobility and Home Ownership," the stated goal was to discredit and oppose "rail-transit boondoggles" and "restrictions on rural property rights." So much for all those feel-good urban design and livability conferences. The political theory gauntlet has been thrown down by the property rights crowd. The attack on smart growth principles is not only constant, but it is consistent as well. The message: Smart growth is a set of ideas dreamed up by pinheaded intellectual planners out of touch with reality who want to cater to urban elites and deny the masses the things they really want and need, such as houses and yards and cars. And upon just a bit of reflection, we have to admit that maybe the planners have lost the battle before it has begun. After all, the smart growth agenda has been primarily carried by architects and progressive infill developers working in league with redevelopment officials and transit agencies. All of these groups have reaped financial benefits from dramatically revitalized central cities. But urban planners have mainly been relegated to a cheerleading role, having evolved into a profession that is shy about leading a charge. Smart growth -- or what we used to call good planning -- is probably a better "sell" as an on-the-ground reality than it is as a theory. Because the intellectual debate comes right back to a fundamental planning issue: Property rights for the individual vs. collective planning for society. That's why I'm pretty certain that in the war about the philosophical merits of smart growth, planners will be outgunned. That is because full-blown debate over urban social theory is an arena that most urban planners have lost stomach for. This may stem from the dismal failures of post-war urban renewal, a movement that planning agencies once lobbied in favor of loudly and successfully. As a case in point, most planners are unaware that the anti-smart growth movement even exists. Some of the movement's leaders are typical property rights advocates who want to do little more than argue intellectual constructs just as the smart growth thinkers do. But the movement is already developing strategies on how to best win the hearts and minds of policy-makers. For example, Jon Caldara, president of the Golden, Colorado-based Independence Institute, warned that the anti-smart growthers avoid coming off as "cranky white men," and recommended that they play the race card by enlisting spokespeople like Joseph P. Neil, an African-American state representative from South Carolina. Neil has opposed development restrictions that protect rural lands from development in that state. Like other lighting-rod issues forced on the American consciousness by Bush and the conservatives in Washington, smart growth will apparently now require highly politicized discussion. This is not necessarily a bad thing, but one that will challenge planners in an arena that they have all but left behind.

Spurred by several pieces of legislation approved during the last few years, California's state government agencies are gradually making advances in environmental justice. At least five agencies have adopted environmental justice policies or mission statements. The Governor's Office of Planning and Research has conducted environmental justice training for employees of more than 50 different agencies. The California Environmental Protection Agency (Cal EPA) is working on a broad environmental justice strategy and implementation measures, all of which are intended to serve as a model for other state agencies. These steps mark a significant change from only a few years ago. Not until 1999, when Gov. Davis signed SB 115 (Solis), did California codify a definition of environmental justice. The law (Government Code § 65040.12) defines environmental justice — commonly called simply "EJ" — as: "The fair treatment of all races, cultures and incomes with respect to the development, adoption, implementation, and enforcement of all environmental laws, regulations and policies." The Solis bill was followed in 2000 by SB 89 (Escutia), which required creation of an environmental justice working group and public advisory committee to assist Cal EPA in developing an EJ strategy. Senate Bill 828 (Alarcon) from 2001 gave the agency until December 31, 2003 to adopt the strategy and to identify obstacles in state government to environmental justice. The EJ movement grew out of 1980's protests over "environmental dumping" or "environmental racism." The idea is that the government ought not place an inordinate number of unwanted land uses in poor or minority neighborhoods, and that agencies ought to consider how development projects and government programs impact — and serve — those neighborhoods. Caltrans might be farther along in actually carrying out EJ policies than any other state agency. Because it gets so much funding from the federal government, Caltrans has been involved in EJ efforts since President Clinton signed an executive order mandating environmental justice considerations in 1994, said Greg King, chief of Caltrans' cultural and community studies office. Caltrans' project delivery process has included an EJ analysis since the mid-1990s. In late 2001, Caltrans Director Jeff Morales signed a director's policy that states, in part, "The Department emphasizes the fair treatment and meaningful involvement of people of all races, cultures and income levels, including minority and low-income populations, from the early stages of transportation planning and investment decision-making through construction, operations and maintenance," King said. Caltrans, said King, has found that environmental justice often can be advanced through early and frequent communication with members of the public, and then responding to public concerns. "We're trying to move environmental issues up early on in the planning process so you have more latitude in the decision-making process," King said. That means thinking about EJ long before a project gets approved for funding through the State Transportation Improvement Program. "By the time we've done our environmental studies, we need to have worked with the communities." In the heyday of freeway construction, the state frequently bisected or wiped out poor neighborhoods to accommodate new roads. When Caltrans officials return to those neighborhoods 40 and 50 years later to talk about new projects, the officials learn that residents have not forgotten past mistreatment. When Caltrans rebuilt the Cypress freeway in west Oakland after the 1989 Loma Prieta earthquake collapsed a portion of the elevated highway, the agency met resistance based on the original construction of the freeway through a poor, African-American neighborhood, King explained. Now, both Caltrans and the Federal Highway Administration point to the reconstruction project as an example of EJ success. The agency realigned the freeway away from the neighborhood and nearer to military property. Caltrans also spent $2.5 million on construction trade training for members of the community, and the agency awarded contracts to minority-owned businesses. Nowadays, communities that might have gotten steamrolled back in 1950s can tie up a project in court for years. Caltrans engineers and planners well know this, which further encourages community outreach efforts. This outreach involves local meetings, providing information in multiple languages, and working out mitigations for project impacts, such as sound walls, landscaping, providing linkages over a freeway or even choosing a different route. It's all part of what Morales calls "context-sensitive solutions." Environmental justice training for Caltrans employees is ongoing, and reactions among workers is mixed, conceded Peter Bond, an associate transportation planner who helps conduct training sessions. "About half the people are saying this is just common sense, and about half the people are shaking their heads and saying what in the world are you talking about," Bond said. The Office of Planning and Research has provided EJ training for hundreds of government employees. The training is broad and addresses EJ history, issues and controversies, as well as best practices, said Bonnie Chiu, of OPR's environmental justice office. She said OPR recommends full public involvement in projects and programs, using GIS as a tool, and completing a checklist to ensure that impacts are considered and all community members have access to the process. "We're hoping to do more specific training for just one agency so we can get into the details," Chiu said. Cal EPA's ongoing development of an EJ strategy is the most comprehensive efforts in the state government. During a two-day meeting in March, Cal EPA's 17-member advisory committee refined recommendations it has been developing. The recommendations, contained in a lengthy report, are based on four elements: • Ensuring EJ is integral to the development, adoption, implementation and enforcement of laws and policies. • Ensuring and promoting meaningful public participation. • Improving research regarding the health and environment of "communities of color and low-income populations." • Ensuring multi-agency coordination and accountability. The advisory committee is scheduled to complete its work this spring. Working group hearings on the proposed EJ strategy will follow. Contacts: Bonnie Chiu, Office of Planning and Research, (916) 323-9033. Greg King, Caltrans, (916) 653-0647. Cal EPA environmental justice website: www.calepa.ca.gov/EnvJustice/ Governor's Office of Planning and Research environmental justice website: www.opr.ca.gov/ejustice/EJustice.shtml

From a distance, the Gaia Cultural Center in Berkeley does not appear to be an unusual building. Designed in a subdued Classical style with arching windows and pilasters, the seven-story building looks as if it has been standing on Allston Way for many decades, like the genuinely historic buildings that surround it. That only thing out of the ordinary, perhaps, are the palm trees waving on the roof. When we get a little closer, however, we realize that the Gaia (pronounced "guy-ah") may not be so ordinary after all. The building is tall, densely populated and has a number of progressive touches. The building stands head and shoulders above its two-story neighbors. Gaia, which opened in June 2001, is in fact the tallest building to be completed in downtown Berkeley in nearly 30 years. With 91 apartment units, it is also one of the densest residential buildings in the city. The rooftop is an 11,000-square-foot landscaped courtyard that is a demonstration project in urban greening and is filled with people most times of the day. Committed to clean air, the landlord has provided three electric vehicles for residents to share. In short, this is a building with a Berkeley flavor as strong as Peet's coffee—even if some Berkeley residents reacted to the project, when first proposed, as if it were a nuclear waste dump. The building is basically six stories of apartments that sit atop a 20-foot podium. The podium contains the parking, a 100-seat theater and a street-front café that will double as a jazz club five evenings a week. Above the podium are six stories of apartments, arranged like a square doughnut around an internal courtyard on the third level. Staircases connect this internal courtyard to all upper floors. And on the roof is the courtyard, with potted palms, clematis and other plants. A glass-walled solarium stands in the center of the rooftop garden, and has become a popular gathering place. The developer is Patrick Kennedy, a graduate of Harvard law school and MIT's real estate development program, who has made a career out of building apartment buildings and lofts in Berkeley. Such a vocation requires a strong intellect, resilient idealism and, a thick hide, all wrapped up in a robust ego. Berkeley is a city renowned for its hostility to a new development. "There is a certain segment in Berkeley that believes that anything undertaken by the private sector is bad," said Kennedy, who added that the most virulent opposition came from what he described as "two or three career obstructionists." One opponent described Gaia as a "Stalinist monstrosity and monument to civic corruption." The alleged corruption was the 20% density bonus that the city granted the developer for providing low–income housing. (The city in principal also granted the project a second density bonus for the cultural use, but denied Kennedy the right to use both bonuses.) The architect, Oakland-based Kirk Peterson, recalled the public-hearings on Gaia as a "pretty crazy process, with all these people and their agendas." Preservationists, he said, "did not want a tall building with a tall front elevation on the street, and the Ecocity Builders group was campaigning for a green building with trees on top." As the architect, Peterson said, "I was in the middle, and I did not really enjoy it a lot of the time." In the end, the developer compromised with both groups: setbacks lowered the facade on Allston Way, and the developer hired Ecocity to provide environmental consulting. As for the suspicion about the private sector, the Gaia project "demonstrates that high density can be beautiful and socially desirable at the same time," said Kennedy, pointing out that he provided 19 units for low-income residents without any public subsidy. If the city had built those units on its own, he added pointedly, "it would have cost a couple of million, at the very least." Some of the most progressive thinking in the Gaia Cultural Center concerns transit and transportation. Despite its density, the building is not a big traffic generator. There are only 42 parking spaces in a building where nearly 240 people live, or fewer than half a parking space per unit—surely some sort of record for a new building in California. The low parking ratio has a number of justifications. The building is about 100 feet away from the downtown Berkeley BART station, and within easy walking distance of UC Berkeley, where many of Gaia's residents work or attend classes. A number of residents use wheelchairs. In addition, the building contains two conventional automobiles that are made available to Gaia residents on a reservation basis. (The program is modeled on a program in Oregon known as Carsharing Portland.) Additionally, three electric vehicles (Kennedy calls them "glorified golf carts") are available to qualified residents who have insurance. The garage itself is unusual. The garage contains stacking parking elevators from Germany that triple the capacity of each available space. According to a Kennedy brochure, "the car elevator liberates valuable ground floor street space for livelier uses, including a cultural center and café." For me, the most interesting part of the design is the rooftop garden, which is unusual for California, even though, Peterson said, "It is done all over all Italy." Open space is critical in making high-density bearable, even desirable, and rooftop courtyards are an idea worth promoting. Rooftops, of course, cannot replace parks and plazas and courtyards. But in a densely developed setting like downtown Berkeley, developers must look for open-space opportunities where they did not before. The idea of high-density urbanism means, among other things, that leftover spaces need to be used as gardens and playgrounds. For Kennedy the developer, however, the lesson of the Gaia building is the rediscovery of downtown Berkeley, which he described as a "weather-beaten and neglected part of the city," adding, "I think the Gaia building has demonstrated that downtown can be a stimulating place." Kennedy also said, without irony, that Berkeley has a lot of potential for development. "It's been so hard to do," he observed, "that there are plenty of opportunities."

If ever there were a year that would seem ripe for housing element reform, it's 2003. The recent Regional Housing Needs Allocation process (RHNA) in Southern California has been a disaster -- characterized most recently by a court ruling from Riverside County which chastised both state and regional agencies but didn't give much relief to the Inland Empire cities that filed the lawsuit. The Public Policy Institute of California recently concluded that good housing elements don't increase housing production. And in the midst of the state budget crisis, the Legislative Analyst's Office has proposed suspending the RHNA process, arguing that the idea is good but starting a new cycle under the current law is pointless. Yet there is little discussion of comprehensive reform, nor even much active discussion on whether to move forward into the next cycle of RHNAs and housing element updates in 2005. Legislative Analyst Liz Hill has proposed zeroing out the budget for RHNA in the 2003-04 budget -- the same approach that was taken during the recession of the 1990s. While conceding the value of the RHNA concept, she wrote: "Given the significant shortcomings of the process, we do not believe it is worth beginning another cycle of revisions under the current system. Instead, we recommend that the Legislature suspend the regional planning mandate for COGs and pursue legislative reforms of the process." But Gov. Gray Davis has not proposed zeroing out the RHNA process. State Sen. Joe Dunn (D-Santa Ana) -- who has been talking tough about housing elements for two years -- has introduced a new bill (SB 744) that would tie economic development and infrastructure funding to housing production and create a state appeals board for affordable housing projects that have been denied locally. But there does not seem to be any move afoot to negotiate an entirely new state-local housing policy. This is ironic. If there were ever an argument for reforming the state's housing policy — or putting it on ice for a while — surely it is the debacle that emerged from the Regional Housing Needs Assessment process in the six-county area overseen by the Southern California Association of Governments (SCAG). The latest development came on March 10, when a Riverside County Superior Court judge issued a ruling that seemed to favor dissatisfied Inland Empire cities, while hammering both SCAG and the state Department of Housing and Community Development (HCD) for deviating from the processes contained in state housing element law. SCAG's RHNA process — which technically covered the period from 1998 to 2005 — got off to a promising start, but it quickly ground to a halt over two related issues at the core of the problem with the housing elements. The first was the overall housing target given to SCAG by HCD. The second was SCAG's distribution of that housing within the region. HCD's original target for SCAG was about 623,000 units. In December of 1999, after considerable negotiations, HCD lowered that figure to 504,000 (later reduced again to 503,000). But this did not stave off a near-revolution within SCAG, led by inland cities that felt they were being forced to take housing that coastal areas did not want. Instead of resolving this internal dispute, SCAG called a "time out" in the spring of 2000 and went back to HCD, hoping to lower the number again to 437,000 units (see , June 2000). HCD rejected the lower number. SCAG went through an alternative dispute resolution process with its own cities, and also allowed HCD to rule on the allocations that had been worked out within SCAG's own subregions. In December 2000, HCD accepted the RHNA allocations for the Gateway Cities, Ventura County, and Westside Cities subregions but rejected a request for reductions from the Inland Empire jurisdictions. Eventually, a group of four Inland Empire cities and the Counties of Riverside and San Bernardino sued SCAG and HCD. Meanwhile, SCAG and three of its subregional agencies sued HCD. In ruling on the combined cases, Riverside County Superior Court Judge Robert Spitzer slammed both SCAG and HCD. He rejected SCAG's argument that the 437,000-unit figure should have been accepted by HCD based on SCAG's own "elaborated criteria." In fact, Spitzer found that the "elaborated criteria" did not appear to be based on state Department of Finance forecasts, forecasts used in the Regional Transportation Plan -- or, indeed, any methodology mentioned in the housing element law (Government Code § 65584). But he also found that HCD had usurped SCAG's authority by approving some subregional allocations and not others. Under the housing element law, Spitzer said, HCD can accept or reject SCAG's allocation, but subregional allocations are SCAG's job. "HCD cannot engage in a process of de facto appellate review of individual city and county allocations, which has the effect of discriminating among different members of a group of successful COG appellants," Spitzer wrote. The judge ordered HCD to set aside its December 2000 decision to accept some SCAG subregional allocations and reject others. And he told HCD that it cannot reject individual city housing elements based on a city's failure to meet the allocations contained in the December 2000 decision — a ruling that the Inland Empire cities and counties hailed as a victory. At the same time, Spitzer did not tell anybody exactly how to proceed. On the one hand, he said, "HCD has not been commanded to exercise its discretion in any particular way and has not been commanded to reject SCAG's Final RHNA. SCAG has not been directed to rehear the Inland Empire plaintiffs' appeals, to reopen the entire regional appeals process or to engage in a regionwide reallocation of HCD's revised RHNA consistent with this decision." On the other hand, he said: "However, nothing in this Statement of Decision should be construed as preventing the parties from agreeing to resolve or moot the issues in this action by immediately proceeding with the 2003-2008 RHNA process." All very clear, eh? The Legislative Analyst's discussion of RHNA and housing elements does not specifically mention the SCAG dispute. But a careful reading suggests that she finds the whole SCAG RHNA dispute a waste of the state's money. The housing allocation process costs the state money because it is a state mandate; regional and local agencies may file claims with the state for reimbursement. The LAO budget analysis notes that RHNA claims against the state between 1998 and 2002 were almost $10 million — or three times the figure appropriated in the state budget. The state has postponed paying most reimbursable costs, and the LAO estimates the state faces a future obligation of about $5 million. Furthermore, it is clear that the amount claimed is due partly to subregional infighting. The assumption in Sacramento is that most RHNA claims come from regional agencies seeking reimbursement for modeling and other allocation costs. In fact, the LAO noted, 75% of the claim amounts have come from cities and counties. And what are the cities and counties seeking reimbursement for? Local governments have great leeway in this area. But it's worth noting, as the LAO pointed out, that Moreno Valley -- the ringleader in the lawsuit against SCAG -- has filed a claim for $265,000. Meanwhile, Corona, a city of similar size in the same county that did not participate in the lawsuit, filed a claim for $13,000. Translation: The state is footing the bill for SCAG and its member cities and counties to sue each other over the RHNA process. For many years, the RHNA/housing element process has been a classic bureaucratic stalemate. The law is strong enough to be annoying and weak enough to be useless. The budget crisis could provide a vehicle for moving past this stalemate, if anybody were interested in doing so.

Tejon Ranch owns what might be the largest contiguous stretch of land controlled by one property owner in California. Since the mid-19th century, the Tejon Ranch property, located along present-day Interstate 5 in Los Angeles and Kern Counties, has served primarily for cattle grazing and sport hunting. But Tejon Ranch Company, a publicly traded corporation, is now pursuing major development projects on opposite ends of the ranch: a 1,400-acre industrial park at Interstate 5 and Highway 99 in Kern County; and a new town of 23,000 housing units on 11,700 acres at I-5 and Highway 138. The new town would lie the edge of the Tehachapi Mountains and the western Antelope Valley in northern Los Angeles County. Tejon Ranch is also pursing a resort development of some type, but the company has declined to elaborate publicly. The Kern County Board of Supervisors approved the Tejon Industrial Complex in January, but environmentalists have filed a lawsuit that alleges the county violated the California Environmental Quality Act. Los Angeles County planners have only begun to process the application for the new town. Environmentalists are demanding that the company release a master plan for its entire 270,000-acre (420-square-mile) ranch before proceeding with individual projects. But Tejon Ranch officials say their current plans cover only about 5% of the ranch, will take years to build out, and projecting beyond those projects is too speculative. "They keep asking, �What else are they going to do?' Well, we don't know," said Barry Hibbard, vice president of commercial and industrial marketing for Tejon Ranch. Center for Biological Diversity attorney Kassie Siegel does not believe it. Kern and Los Angeles counties should insist on a master plan before processing any Tejon Ranch development proposals so that all of the potential impacts are known, she said. "They have been piecemealing this all along the way," she said. Kern County Planning Director Ted James did not believe a master plan was necessary for the county to process the industrial complex application. "If this had been a 100-acre project site on the valley floor, and they were only going to develop 40 acres, I'd say, �Why don't you do a master plan?'," James said. But the ranch "is so diverse geographically" that master planning would be nearly impossible, he said. At times, it is difficult to tell if environmentalists and Tejon Ranch are talking about the same land. Environmentalists say the ranch � which stretches from the outskirts of Bakersfield over the Tehachapi Mountains to the Antelope Valley � is an important corridor for wildlife movement and provides habitat for numerous species. "It is an absolutely critical area in California," Siegel said. "It is the last remaining linkage between coastal Southern California and the Sierra Nevada for wildlife." Tejon Ranch, meanwhile says the sites for the industrial complex and new town have little habitat value (partly because of years of grazing) and that I-5 and the California Aqueduct, both of which bisect the ranch, already inhibit wildlife movement.  The Tejon Industrial Complex attempts to take advantage of two things � Kern County's need for employment, and the site's proximity to existing trucking routes. In 2000, Kern County supervisors approved 5 million square feet of industrial development on 320 acres west of I-5 (see , October 2000). Shortly after receiving approval for that project, Tejon Ranch filed an application for 15 million square feet of industrial development on 1,100 acres east of the freeway. In January, the county approved a general plan amendment, rezoning, specific plan and development agreement for the 1,100-acre project. The county also canceled a Williamson Act contract for 130 acres of farmland on the site. Project backers foresee the industrial complex becoming a major distribution center for the western United States, employing as many as 6,800 people. So far, an 850,000-square foot Ikea warehouse has been built, and a second warehouse of the same size for the furniture retailer is under construction, according to Hibbard. Another 650,000-square-foot warehouse is complete and half leased. Plans for an additional 600,000 square feet of space are in limbo because of the general economic uncertainty, he said. Build-out of the entire 20 million square feet will take seven to ten years, he estimated. The site is advantageous to shippers because it does not take any longer to move freight from ports in Long Beach and Los Angeles to the Tejon Industrial Complex than to logistics hubs in western San Bernardino and Riverside counties. But Tejon Industrial Complex provides better access to Northern California population centers, Hibbard said. Even the site's east-west access is good, thanks to nearby Highway 58, which intersects with Interstates 40 and 15 in Barstow. Kern County's unemployment rate is typically among the highest in the state, so distributors have been swamped with job-seekers, Hibbard reported. Those new jobs were enticing to county leaders, James added. The site is marginal farmland at the confluence of two highways, "so it was a logical place for trucking or travel-related activities," James said. But project opponents argue that a major employment center belongs in an established urban area. Bakersfield is about 30 miles away, while the smaller communities of Arvin and Lamont are about 20 miles from the industrial complex. Forcing thousands of workers to drive 40 to 60 miles roundtrip will only exacerbate air pollution in a region that compares to the smoggy climes of the Inland Empire and Houston, project opponents contend. In fact, air pollution is one of the key issues surrounding the project. The county adopted findings of overriding consideration regarding air quality because the project's air quality impacts could not be mitigated � a common practice in the Central Valley. The county did impose conditions, such as requiring all on-site forklifts to be fueled by propane or electricity, and requiring trucks to connect to electricity hookups rather than run their diesel engines all night. Also, car-poolers will get priority parking, and bus service, which now runs four times per day, will expand. Those conditions did not satisfy environmentalists, and air quality is one aspect of their CEQA lawsuit. The lawsuit � filed by the Center for Biological Diversity, the Center on Race, Poverty and the Environment, the Sierra Club and the Kern Audubon Society � also claims the environmental impact report did not adequately address loss of habitat and farmland, growth inducement, impacts to water quality and other issues. Attorney Siegel said environmentalists submitted hundreds of comments during the review process, but the county largely ignored the input. James said the county expected environmentalists to sue over the project, so officials were extra careful with their review. Hibbard said the project has "a well-documented EIR and we're very confident." "Kern County grew 42% during the 1990s," Hibbard continued. "These people need somewhere to work. We think this is a great place for commercial and industrial development." James believes it would be logical for the area near the freeway junction to become a city in the distant future. He noted that a specific plan for the 9,400-acre San Emedio Ranch � where a housing subdivision was approved 11 years ago but never developed (see , October 1992; , June 1993)� remains in effect for property just west of the industrial complex. Los Angeles houses While the industrial complex is the farthest along of Tejon Ranch's projects, the proposed new town would be significantly larger. Tejon Ranch has joined with three developers � Pardee Homes, Lewis Investment Company and Standard Pacific Homes � on the project, which is called Centennial. The proposed specific plan, which proponents filed with Los Angeles County in early March, calls for 23,000 housing units, 12.2 million square feet of office and industrial space, and 1.9 million square feet of retail development. Roughly half of the 11,700-acre site would be parks, golf courses or open space. Development would occur over 20 years. The county's general plan currently designates the site as a special ecological area or a hillside management area, according to Russell Fricano, acting head of the county's zoning permits section. Centennial would be about the same size as the proposed Newhall Ranch, a project 20 miles closer to Los Angeles that has become a lightening rod for criticism. The idea behind Centennial is the creation of a self-contained city, said Greg Medeiros, vice president of community development for Centennial Founders, LLC. Project designers have drawn ideas from a number of the best-known new urbanist and neo-traditional developments around the country, including Celebration in Florida, Kentlands in Maryland and Summerlin in Las Vegas. Centennial is proposed to have a traditional village center surrounded by more typical suburban housing subdivisions. Retail and office development will be integrated throughout the project, and an open space buffer, which includes Los Padres National Forest, would circle the town. "If you believe that growth is inevitable, then you should be looking for appropriate sites. This site is ideal," Medeiros said. "There is very little biodiversity. There are no endangered or threatened species � it has been grazed for about 125 years. There are mostly non-native grasses on the site." Moreover, the California Aqueduct, a high pressure natural gas line, fiber optic lines and two highways run through the site, which also has a Southern California Edison substation. Project backers have undertaken an extensive public outreach campaign for the approximately 6,000 people who live in Frazier Park, Gorman, Pine Mountain and other small communities in the vicinity, Medeiros said. Feedback thus far has been mostly positive, and, indeed, environmentalists have remained in the background. But no one expects that to continue. One of the major issues environmentalists are likely to press is water. Proponents are working on a water plan, Medeiros said. He conceded that the plan will rely partly on the State Water Project. However, the State Water Project can deliver only about half of what it has promised to farmers and urban areas, and courts are beginning to block projects that rely on the State Water Project as a primary source. Contacts: Barry Hibbard, Tejon Ranch, (661) 248-9000. Greg Medeiros, Centennial Founders, (310) 446-1278. Kassie Siegel, Center for Biological Diversity, (909) 659-6053. Ted James, Kern County Planning Department, (661) 862-8600. Russell Fricano, Los Angeles County Planning Department, (213) 974-6443. Tejon Ranch website: www.tejon.com

The California Coastal Commission did not have authority to modify a coastal development permit that the San Mateo County Superior Court had ordered the City of Half Moon Bay to approve, the First District Court of Appeal has ruled. The Coastal Commission, in fact, intervened in the original lawsuit on behalf of the city, so the Commission was bound by the Superior Court's ruling. The commission could not effectively overturn the Superior Court by conducting its own hearing on the permit, the First District ruled. At issue was the 24-acre Beachwood subdivision in Half Moon Bay. In 1990, the city approved an 85-lot vesting tentative map for the project. Development did not commence, however, before the city imposed a sewer connection moratorium that lasted until early 1998. In anticipation of the moratorium ending, the Beachwood developer applied for a coastal development permit (CDP), which was required because the site lies in the coastal zone. During processing of the permit application, controversy arose over the Half Moon Bay local coastal program's definition of "wetlands." In the end, the city adopted a broader interpretation than the developer liked, and the city denied the CDP because of wetlands on the site. The developer sued, asking the Superior Court to order the city to issue the CDP in conformity with the vesting tentative map. The city and the Coastal Commission — which the developer and the city allowed to participate in the lawsuit — fought the request. But the court in February 2001 ruled that the city's definition of wetlands was unreasonable and circumvented the local coastal program. The court ordered the city to issue the CDP in accordance with the subdivision map. The city approved the CDP the following month, but four people — including two members of the Coastal Commission — appealed the decision to the Commission. The developer then filed a new lawsuit, arguing that the Commission did not have jurisdiction. Before the court could hear the new lawsuit, the Commission considered the CDP appeal. The commission approved the permit but ordered a reduction of 58 lots so development would avoid wetlands. The two lawsuits were combined, and in July 2002 the Superior Court ordered the Commission to vacate its decision. The court ruled that the Commission did not have jurisdiction because it can only hear appeals of CDPs approved by a local government; Half Moon Bay was only complying with a court order. The court also ruled that the Commission was bound by the earlier court ruling, and that other administrative remedies had been available. The Commission and the city appealed, but a unanimous three-judge panel of the First District, Division Four, upheld the lower court. The court kept the issue narrow: "Where a local government approves a project in response to a writ of mandate ordering it to do so, and the Commission was a party to the writ proceedings, may the Commission assert jurisdiction to hear an appeal of the approval?" The court said no. The Commission and the city argued that the Commission was reviewing the project, not the Superior Court order. Plus, they argued, the Superior Court order had never been made final. The appellate panel rejected the contentions. "In issuing that first writ of mandate, the trial court did not merely rule that the record did not support a finding of wetlands under the correct interpretation of the LCP ; it ruled that Beachwood must be issued a CDP in conformance with the 1990 vesting tentative map," Justice Maria Rivera wrote for the First District. "As a party to the writ proceedings, the Commission was bound by this ruling, whether or not it was ‘final.'" The Commission and the city, Rivera continued, could have taken two other courses of action. They could have sought immediate relief from the appellate court. Or they could have litigated the remaining issues in the original lawsuit, which had remained unsettled by the court's first order, and then filed an appeal. Instead, the city complied with the court order and issued the CDP, and the Commission asserted jurisdiction. "Having opted for this procedural path, the Commission must live with its consequences: At the time it heard the appeal, the Commission was still bound by the court's order … . he Commission's action in hearing the appeal and imposing new conditions on the CDP directly and impermissibly contravened the trial court's order," Rivera wrote. A court order, he noted, can be modified or overturned only by a subsequent court order. The Case: , No. A100099, 03 C.D.O.S. 1746, 2003 DJDAR 2431. Filed February 28, 2003. The Lawyers: For the city: Julie Bond, Meyers, Nave, Riback, Silver & Wilson, (510) 351-4300. For the Coastal Commission: Tara Mueller, deputy attorney general, (510) 622-2136. For Beachwood: Edgar Washburn, Stoel Rives, (415) 617-8900.

Since 1996, California voters have approved $11.1 billion worth of resource bonds. However, tracking how that money has been spent, how the remainder is proposed to be allocated — and even determining how much money is available — have proven tricky. No one is alleging government fraud. Rather, the issues are accountability and legislative oversight. For example, the governor's proposed budget does not provide fund balances for four of the five bond funds. In its annual review of the governor's proposed budget, the Legislative Analyst's Office (LAO) presented a number of recommendations to make the bond expenditures — and, therefore, the administration's resources spending priorities — easier for lawmakers and the public to track. "There are a lot of state agencies involved in acquiring land and restoring land for environmental purposes, and it would be advantageous for the Legislature to look at those expenditures in total," said Mark Newton, director of resources and environmental protection for the LAO. "You would still give the agencies a fair amount of flexibility to acquire land, but you need to have at least broad categories of how the money is going to be spent." The LAO has compiled fund conditions for the five resource bonds — Proposition 204 from 1996, Propositions 12 and 13 from 2000, and Propositions 40 and 50 from 2002 (see chart). The LAO further breaks down the funds by program area: • Parks and recreation (state and local parks, historical and cultural preservation): $2.3 billion in Propositions 12 and 40. Proposed spending during the 2003-04 fiscal year is $708 million, leaving a balance of $141 million. • Water quality (wastewater treatment, watershed and beach protection, drinking water infrastructure): $2 billion in Propositions 204, 13, 40 and 50. Proposed spending is $293 million during 2003-04, leaving a balance of $579 million. • Water management (supply, flood control, desalination, recycling, conservation, security): $1.7 billion in Propositions 204, 13 and 50. Proposed spending for 2003-04 is $213 million, leaving $560 million. • Land acquisition and restoration: $3.2 billion in Propositions 204, 12, 40 and 50. Proposed spending is $590 million for 2003-04, leaving $935 million. • CalFed Bay-Delta Program: Propositions 204, 13 and 50 allocated money explicitly for CalFed, although many of the bonds' purposes are consistent with the program. Proposed spending from 204, 13 and 50 during 2003-04 is $400 million, leaving $617 million specifically earmarked for CalFed. • Air quality: $50 million in Proposition 40. The administration proposes spending the remaining $23 million during 2003-04. The LAO recommended that one agency be designated for overall implementation of Propositions 40 and 50, where the bulk of the money remains. The LAO also urged more oversight of $1.2 billion allocated to the Wildlife Conservation Board via those two propositions. The bonds provide the money to the agency as a continuous appropriation, meaning the money would be spent "outside the budget process and without legislative appropriations." The proposed budget contains $412 million for capital outlay, including $386 million for "unscheduled projects." Technically, the administration's proposal follows the law, Newton said. But the Legislature has the option of bringing the expenditures into the budget process, as the LAO recommended. However, the Wildlife Conservation Board, composed of the finance director, the president of the Fish and Game Commission, and the director of the Department of Fish and Game, disputes the recommendation and the implication that it lacks oversight. The board has a six-member advisory committee of legislators that is briefed on all proposals before the board makes decisions, said Georgia Lipphardt, the board's assistant executive director. The board also provides notice of proposed actions to the Legislature 10 and 30 days in advance. Besides the board's process, the bonds themselves provide guidance, she said. "We couple the language in the bonds with our mandate, which has habitat protection, land acquisition and public access as our primary focus," Lipphardt said. There is no doubt that the bonds have provided a great deal of money for environmental enhancement and resource development. A study by the Public Policy Institute of California (PPIC) last year found that spending on natural resource programs, as a percentage of total state spending, shrank from 4% in 1979 to 3.4% in 2000 before increasing in 2001. The study also found that general fund support for these programs diminished as the state boosted special fees. Capital investment was "erratic" because it relied on general obligation bonds, whose drafting was subject to the political winds, the study found. Importantly, said PPIC study author Fred Silva, governors since the 1990s have used bond funds to cover administrative costs, rather than spending the money only on capital projects. "Departments are using bond funds to operate their programs. I don't blame the agencies. It's the way the state finance system works," Silva said. "The resource conservation programs really get stiffed." Still, one of the primary authors of Propositions 12 and 40, former Democratic Assemblyman Fred Keeley, said those bonds have made a big difference. "There are substantial areas that have been preserved and protected that would not have been protected, or would have been protected later and at a much greater price," said Keeley, who is now executive director of the Planning and Conservation League (PCL). Prior to Proposition 12's passage in 2000, there had not been a park bond approved since 1990, meaning there was a pent up demand, Keeley said. Proposition 12 quenched some of that thirst, while Proposition 40, whose money is supposed to be spent over five years, helps the state "get ahead of the growth and development in California," he said. Under a contract with the Resources Agency, PCL is scheduled to release a report this month on the efficacy of Propositions 12 and 13. Contacts: Mark Newton, Legislative Analyst's Office: (916) 445-4656. Georgia Lipphardt, Wildlife Conservation Board: (916) 445-8448. Fred Keeley, Planning and Conservation League: (916) 313-4522. LAO budget analysis: www.lao.ca.gov/analysis_2003/analysis_2003_contents.html PPIC resources spending report: www.ppic.org/main/publication.asp?i=308

Placer County did not violate state law by including two projects in one environmental impact report, the Third District Court of Appeal has ruled. The county did not abuse it discretion by covering a 31-lot subdivision and a large church — which started out as two parts of the same project — in one EIR, the court held. In 1997, Elliott Homes submitted an application for development of 31 residential lots on 174 acres and for a church on a separate 34-acre parcel located nearby on Sierra College Boulevard in the unincorporated community of Granite Bay. The church was proposed as a two-phase project totaling 173,000 square feet of buildings and 1,700 parking spaces. In March 1999, the county issued a draft EIR for both the Cavitt Ranch Estates subdivision and the Bayside Covenant Church. When it came time for the county Planning Commission to consider the EIR and project application, the commission considered only the subdivision. The commission certified the EIR and approved the subdivision, but denied a requested variance, in July 2000. Elliott appealed, and two months later the Board of Supervisors approved the variance and certified the EIR. While Elliott's appeal was pending before the Board of Supervisors, Bayside filed a separate project application for the church. The county then issued a "Reprinted Environmental Impact Report" for the church project. The document was the same as the final EIR certified for the subdivision, including responses to comments given for the March 1999 draft EIR. The Planning Commission rejected the proposed church, finding its size inconsistent with the Granite Bay Community Plan. The commission took no action on the environmental document. Bayside appealed to the Board of Supervisors. During the board hearing, Bayside reduced the size of the project nearly by half. Supervisors then approved a conditional use permit for the church and certified the EIR. A group of area residents called Neighbors of Cavitt Ranch sued, alleging that the county committed a number of CEQA violations and that its approval of the conditional use permit conflicted with the Granite Bay Community Plan and the county general plan. Placer County Superior Court Judge James Garbolino ruled for the county, finding the county's CEQA process "novel" but neither unauthorized nor unfair. The residents appealed, but a unanimous three-judge panel of the Third District upheld the lower court. The appellate panel published only the portion of its decision regarding the court's standard of review in the case and the question of including two projects in one EIR. The bulk of the decision went unpublished. The court ruled that it only needed to determine whether the county had prejudicially abused its discretion, a standard of review that grants deference to the county's actions. "The Neighbors urge us to ‘set a bright-line rule that the procedural irregularities of the type that occurred in this case are a per se violation of CEQA.' We decline the invitation," Justice Connie Callahan wrote for the court. What matters is that the county made "an objective good faith effort" to comply with CEQA, the court ruled. "We accord more deference to agency decisions on substantive questions and ‘resolve reasonable doubts in favor of the administrative finding and decision,'" Callahan wrote, citing , (1988) 47 Cal.3d 376. As for the question of two projects/one EIR, Callahan noted that the residents cited no provisions in CEQA or the CEQA Guidelines that prohibited inclusion of distinct projects in a single environmental document. Nor did the residents argue that the projects, which are situated on the same road and separated by only a 4-acre parcel, would have different impacts. "At worst, the inclusion of both elements in a single DEIR resulted in too much information regarding environmental effects, not too little," the court ruled. In the unpublished portion of the opinion, the court held that the county did not have to recirculate the EIR for the church project because it contained no "significant new information" that was not in the certified EIR for the subdivision. The court also ruled for the county on a number of other issues, including CEQA notices, the project description, evaluation of project impacts, and consistency with local land use plans. The Case: , No. C040450, 2003 DJDAR 2725. Filed March 7, 2003. The Lawyers: For the neighbors: George E. Murphy, Farmer, Murphy, Smith & Alliston, (530) 484-3500. For the county: Valerie Flood, deputy county counsel, (530) 889-4044. For Bayside Covenant Church: J. Michael Stusiak, Morrison & Foerster, (916) 448-3200.

Builders and local governments have lost the first court ruling on the newest generation of municipal stormwater permits. San Diego County Superior Court Judge Wayne Peterson upheld the stormwater regulations adopted in February 2001 by the San Diego Regional Water Quality Control Board. The State Water Resources Control Board had early upheld an appeal of the regulations (see , August 2001). The regulations require most residential and commercial developments to capture and treat stormwater runoff in vegetated areas or filtration systems. San Diego County and its cities are to enforce the regulations. The San Diego chapter of the Building Industry Association of America, several developers and the cities of San Marcos and Santee filed a lawsuit that claimed the regulations impermissibly went beyond federal regulations; the regional board wrongly exempted the regulations from California Environmental Quality Act review; and the rules pre-empted local land use authority. Judge Peterson rejected every argument but provided few details in his short ruling. The case is , San Diego County Superior Court No. GIC780263.

Although Sacramento is short of money these days, the state capital does not lack for policy initiatives that directly or indirectly affect land use. In fact, veteran lobbyists say they can remember few years when legislators introduced so many policy bills. The California Chapter of the American Planning Association (CCAPA) has no fewer than 261 bills on its tracking list. "Maybe people are using the budget deficit as justification," speculated Pete Price, lobbyist for the League of Conservation Voters. Several measures would give local governments greater responsibility for affordable housing production, rather than simply requiring locals to plan for housing. One proposal (SB 744, Dunn) would apparently set a precedent by establishing a state appeals board to which housing developers could seek relief from a City Council or Board of Supervisors decision regarding entitlements and even project conditions. Proposals to lower the voting requirement to impose taxes for infrastructure and other public projects appear to have traction this year. Local governments, planners and some business and labor organizations back the proposals, which would cut the two-thirds voter approval requirements down to majority vote or 55%. The bills would place a constitutional amendment before state voters. Meanwhile, AB 531 (Kehoe) would place a $10 billion infrastructure bond on the ballot in 2004. As usual, there are also several proposals that tinker with the California Environmental Quality Act. The most important appears to be AB 406 (Jackson), which would bar cities and counties from allowing a developer to prepare his own environmental impact report (see , March 2003). Between trying to maintain funding levels and defending against new mandates, local government representatives appear to be overwhelmed. Some of the housing bills are particularly troubling to cities and counties. "We keep getting blamed in the halls of the state Legislature for apartments not getting built, when the private markets doesn't want to build them," said Daniel Carrigg, a lobbyist for the League of California Cities. "We can't approve it if the private developers are not asking to build it." However, said California Housing Law Project lobbyist Marc Brown, no housing gets built without a local government permit. There is more that local governments could do to help the private sector build affordable units, he said. Bills that would establish housing production standards for local government also provide incentives for locals, he said. During the previous legislative session, Sen. Joe Dunn (D-Santa Ana) led the fight to put real sanctions into the housing element law. Dunn is no longer chairman of the Senate Housing and Community Development Committee, but his SB 744 appears to resume the battle. The measure would give planning, infrastructure and economic development grants priority to a city or county that has met at least 10% for each of the very low-, low-, and moderate-income housing need during the previous year, or 30% of each over the previous three years. More controversially, SB 744 would establish a Housing Accountability Committee within the Department of Housing and Community Development (HCD). The committee would be composed of three governor's appointees, including one representative of local government, and the directors of HCD and the Governor's Office of Planning and Research as ex-officio members. The committee would hear appeals from developers whose proposed projects are consistent with local zoning or the general plan. The panel could overturn a city or county decision to deny a project if the committee found the local rejection was unreasonable and inconsistent with meeting local housing needs. The committee could also modify or remove conditions of approval that render the project infeasible or that conflict with meeting local housing needs. Backers of SB 744 say the measure would establish an appeals process similar to one that has functioned well for years in Connecticut and Massachusetts. But opponents say the comparison is bogus because California has an "anti-NIMBY" law (Government Code § 65589.5) that the other state's lack. Carrigg, the cities' lobbyist, said that because the anti-NIMBY law makes denial of an affordable housing project so difficult, the real motivation behind SB 744 is to eliminate as many conditions of approval as possible. How does one determine that a certain condition makes a project "infeasible," he asked. And what about state conditions — such as requiring use of prevailing wage labor for subsidized projects — that may make affordable housing infeasible, he continued. Price, of the League of Conservation Voters, said environmentalists were likely to oppose SB 744 because of its departure from the principle of local control. Assemblyman Darrell Steinberg (D-Sacramento) has introduced two housing bills that are likely to generate controversy — AB 1160 and AB 1426. The former bill covers a number of subjects, while the latter is aimed at affordable housing production in the Sacramento region. As a follow-up to 2002 legislation making second units a ministerial item (see , October 2002), AB 1160 would eliminate "unreasonable" development standards for second units. The bill would prevent local governments from imposing occupancy requirements for second units or the principle dwelling. The bill also would require a city or county that has not adopted a second unit ordinance to approve second unit applications based on state requirements. Aside from second unit provisions, AB 1160 would require local government to reduce parking standards for projects that qualify for a density bonus, and require even deeper reductions if the project is within half a mile of a transit stop. Furthermore, AB 1160 would allow multi-family or single-family residential development on any parcel zoned for, or developed as, an elementary or high school. The bill also expands the definition of "by-right" housing projects. The bill has already drawn local government opposition. "Cities are going to be very frustrated with this bill," Carrigg said. "It has several lightening rod proposals that go straight to neighborhood issues." The second-unit provisions, Carrigg argued, would permit a single-family residence plus a second unit of up to 1,200 square feet in any residential zone, allow both structures to be rented, and prohibit imposition of parking standards. Those provisions are not going to encourage neighborhoods to embrace affordable housing development, Carrigg warned. But housing lobbyist Brown contended that the bill is intended to overcome local requirements and conditions of approval that are imposed with the intent of making second-unit development nearly impossible. Assembly Bill 1426 would authorize every city and county in the six-county Sacramento region to enter into a joint powers agreement requiring that 10% of housing constructed every year be for very low- and low-income residents. Cities and counties that sign on and meet the production requirement would receive priority for infrastructure funding and would become eligible for certain federal programs, according to an analysis by the California State Association of Counties. The opposition that killed Steinberg's attempt during the last session to reallocate sales taxes in the Sacramento region based partly on housing goals has not surfaced. In fact, a number of local government officials in the region have praised Steinberg for his negotiations, and a broad coalition is supporting AB 1426. "Mandates won't work," said California Building Industry Association lobbyist Richard Lyon, who endorsed AB 1426. "We think his approach, to encourage cities and counties to develop their own solutions, is the fairest approach and the one that is the most likely to achieve the goal." Another omnibus housing bill that has the attention of local governments and environmentalists is SB 619 (Ducheny). Among other things, the bill would streamline local government review of affordable housing projects of fewer than 100 units, or of fewer than 150 units if the project were within half a mile of transit. "We have lots of hearings when the zoning is established," Brown said. "Why do we need a second set of hearings when a project comes in the door that is consistent with the zoning?" Because shutting off public discussion is "anti-democratic," responded Carrigg, who questioned the bill's implications for CEQA review. It is best to hear opponents' concerns and address them, he said. "It doesn't seem like the problems go away if you make a decision without public input," he argued. The Ducheny bill addresses this issue by giving local governments safe harbor from NIMBY lawsuits, according to Brown. Senate Bill 619 also would add language to the Coastal Act to encourage affordable housing production, apply the anti-NIMBY law to mixed-use developments, and modify the Cal Home program. While local government officials, including planners, have concerns about many of the housing bills, the locals are generally behind proposals to lower voter thresholds for new taxes. Those efforts are a priority this year for CCAPA, lobbyist Sande George said. Two of the most interesting tax measures are SCA 2 (Torlakson) and SCA 11 (Alarcon). Both would require approval of state voters. The Torlakson measure would reduce the threshold for imposition of sales taxes or special taxes for transportation or "smart growth planning" to a majority vote. The Alarcon bill would cut into Proposition 13 by allowing a majority of voters to impose an additional property tax to pay for bonds that fund infrastructure, affordable housing projects or open space land acquisitions. Anti-tax groups have vowed to oppose these and other measures that would lower the two-thirds threshold. But others, including the Silicon Valley Manufacturing Group, are pursuing an initiative to lower the voter threshold for transportation taxes to 55%. Among the CEQA bills, AB 406's proposal to require EIRs to be prepared by either the lead agency or by a consultant hired by the lead agency is the most substantial change. The bill would bar project applicants from hiring their own CEQA consultants, which is the practice in roughly 20% of the state's cities and counties. The bill is a response to controversy regarding the suppression of endangered species information prepared by a developer-hired consultant for the Newhall Ranch project in Los Angeles County. Senate Bill 532 (Romero) would eliminate the requirement that a lead agency find that a project may have a significant impact if the impacts are individually limited, but cumulatively considerable. The bill also would require a determination regarding a project's individual or cumulative contribution to health risks due to exposure to hazardous substances. Sen. Dean Florez (D-Shafter) has introduced two bills regarding development of dairies, which is one of the biggest issues in his southern San Joaquin Valley district. His SB 503 would allow a dairy developer to submit an EIR to the Attorney General's office to establish a rebuttable presumption of validity. A second bill that has not been as well-received by dairy farmers and local governments, SB 707, would prohibit new dairies within three miles of an urbanized area or school. Land Use Bills To Watch • AB 406 (Jackson). Prohibits lead agencies from allowing developers to hire their own CEQA consultants. • AB 531 (Kehoe). $10 billion bond for the November 2004 ballot to fund grants and loans to local governments for new infrastructure serving infill development and to replace aging infrastructure. • AB 1011 (Richman). Spells out how money from the proposed 21st Century Infrastructure Investment Fund will be allocated. Voters are scheduled to decide on creation of the fund — a set-aside of general fund money — in March 2004. • AB 1158 (Lowenthal). Overhauls the housing element process to give councils of government more authority in determining and distributing needs. Also makes the housing element process a 6-year process to coincide with transportation planning. • AB 1160 (Steinberg). Prevents local governments from imposing "unreasonable" development standards on second units. • AB 1221 (Steinberg). Swaps half of a city or county's sales tax revenue with property tax revenue. • AB 1244 (Chu). Permits grants from the 1998 school bond to fund joint-use projects that would provide neighborhood resources. Targeted toward Los Angeles Unified School District. • AB 1426 (Steinberg). Sets affordable housing production standards for the Sacramento region. • SB 21 (Machado). Legislative framework for spending Proposition 50 bond revenues. • SB 86 (Machado). Establishes the Sacramento-San Joaquin Delta Conservancy to protect farmland and open space. • SB 109 (Torlakson). Expands the state controller and attorney general's oversight of redevelopment agencies. • SB 114 (Torlakson). Eliminates the sunset provision for, and modifies, an existing law that prohibits local governments from providing financial incentives to automobile dealerships and big-box retail stores that are relocating from a nearby community. • SB 115 (Torlakson). Requires the seller of one to four housing units to notify the buyer of zoning and permitted housing densities on properties within one-quarter mile of the units. • SB 178 (Cedillo). Amends state rent control law to permit local governments to impose restrictions for "inclusionary housing." • SB 619 (Ducheny). Streamlines processing of affordable housing projects. • SBs 700-709 (Florez). A 10-bill package aimed at improving air quality in the Central Valley. • SB 744 (Dunn). Establishes a state board to hear appeals of housing developers, and provides incentives for local governments to produce housing. • SB 898 (Burton). Until 2015, prohibits a local government from zoning for residential or commercial development agricultural land that qualifies as a specified class. • ACA 7 (Dutra). Allows approval of a half-cent sales tax override for a local transportation agency with a 55% vote. • ACA 11 (Alarcon). Allows approval of local general obligation bonds for housing, infrastructure and open space with a majority vote. • ACA 14 (Steinberg). Permits approval of a special tax for infrastructure or quality-of-life projects with a majority vote. • SCA 2 (Torlakson). Allows approval of sales tax override for transportation and "smart growth" programs with a majority vote. Contacts: Pete Price, League of Conservation Voters, (916) 448-1015. Daniel Carrigg, League of California Cities, (916) 658-8222. Marc Brown, California Housing Law Project, (916) 739-6293. CHLP legislation website, www.housingadvocates.org/default.asp?ID=736 Planning & Conservation League legislation website: www.pcl.org/LEG/leg.html