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This case involved the perfect storm of events resulting in the flooding of the plaintiffs' properties and an ensuing legal tempest. Plaintiffs sued the county in court claiming that the flooding was a result of county's failure to maintain a county road, from which the runoff spilled. Plaintiff claimed that the county's neglect of the road constituted a taking and inverse condemnation. In Gutierrez v. County of San Bernardino , the Fourth District Court of Appeals grappled with the application of the "reasonableness" takings test that applies to flood control projects. The court concluded that the county acted reasonably, and therefore, there was no taking. Background In October 2003, a wildfire eliminated all of the trees on a section of the mountains north of the unincorporated community of Devore, where plaintiff Michael T. Gutierrez and other plaintiffs resided. In December 2003, it rained, causing water to flow down the mountain trapping debris and sediment in its wake. The water flowed across Greenwood Avenue and brought the debris and sediment to plaintiffs' properties. In an attempt to protect the properties from further flooding, the county placed concrete K-rails along the sides of the paved portion of the street on which plaintiffs' live. Unfortunately, another large rain storm passed through and the K-rails failed to contain all of the debris and settlement. Plaintiffs brought this action against the county on the grounds that the county's actions in maintaining the street in 2003 and 2004 caused the flooding, and thereby, constituted a taking. The trial court found in favor of the county, and plaintiffs appealed. Appeal On appeal, the appellate court divided the case into two separate issues: was there a taking in 2003, and was there a taking in 2004 by implementation of the K-rails? The court quickly dismissed the issue of the 2003 taking because the road that brought the debris and settlement was still in its natural state and never maintained by the county, and therefore it was not a "public improvement" for purposes of inverse condemnation. As to the part of the road that was paved, plaintiffs failed to present any evidence as to how this road caused the damage to their properties.  The court spent more time discussing the issue of the 2004 flooding. All parties and the court agreed that the K-rails installed in 2004 constituted a public improvement, and the court accepted the trial court's conclusion that the K-rails caused damage to plaintiffs' properties. Thus the only remaining issue, the one that took up most of the court's opinion, is whether strict liability or the "reasonableness test" applied. As stated in Belair v. Riverside County Flood Control District (1988) 47 Cal.3d 550, 565, "a public agency that undertakes to construct or operate a flood control project clearly must not be made the absolute insurer of those lands provided protection." For this reason, courts apply the reasonableness test to flood control improvements, which requires the court to evaluate whether "the design, construction or maintenance of the flood control project…posed an unreasonable risk of harm to the plaintiffs." The appellate court found that the K-rails constituted the type of flood control project to which the reasonableness test applied, and strict liability was not proper. After reviewing the record of evidence, the court found that "substantial evidence supports the trial court's conclusion that the county acted reasonably relative to its installation of the K-rails," and the trial court's decision was upheld in its entirety. The Case: Gutierrez v. County of San Bernardino (2011) 198 Cal.App.4th 831. Filed August 24, 2011.  Cori Badgley is an attorney with the firm of Abbott & Kindermann , LLP, of Sacramento.

Gov. Jerry Brown considered over 600 bills that came to his desk this legislative session. Some of the most contentious involved land use, particularly bills concerning redevelopment and the California Environmental Quality Act. The City of Los Angeles got a CEQA exemption for its proposed football stadium and infill developments have received special dispensation; speculation is that other such exemptions may be on the horizon. High-profile failures and vetoes include a bill opposing the expansion of Walmart in San Diego and a bill that would have lowered parking requirements in transit-oriented districts.  In total, the governor received 870 bills, the lowest number in decades. Yet, he still managed to veto 14 percent of them. Herewith is CP&DR's roundup of relating to land use that made the cut.  California Environmental Quality Act AB 320 (Hill) will prevent CEQA lawsuits and litigation from being thrown out in the event a "recipient of approval" appears only after the statute of limitations time period has passed. The bill will help bring clarity to the question of which parties must be named in CEQA lawsuits and litigation. AB 900 (Buchanan) will allow the governor to choose as many projects as he deems appropriate for the expedited judicial review process, primarily by skipping Superior Court review and expediting the timeline for the litigation process at Appellate Court. SB 226 (Simitian) seeks to streamline CEQA processes to facilitate projects (including rooftop solar, renewables on disturbed lands, and infill) that are generally considered ‘green'.  SB 292 (Padilla) establishes specified administrative and judicial review procedures for the administrative and judicial review of the EIR and approvals granted for a project related to the development of football stadium in the City of Los Angeles.  Land Use AB 147 (Dickinson) is an amendment of the Subdivision Map Act that allows municipalities to include fees to developers for constructing bicycle, transit, pedestrian or traffic calming measures.  AB 208 (Fuentes) extends by 24 months the expiration date of any approved tentative map or vesting tentative map that has not expired as of the effective date of this act and will expire prior to January 1, 2014. AB 516 (M. Pérez) establishes a specified public participation process for the establishment of Safe Routes to Schools programs.  Redevelopment AB 936 (Hueso) requires redevelopment agencies and other public bodies to report debt forgiveness. AB 1338 (Hernández) requires redevelopment agencies to get appraisals before acquiring real property.  Housing AB 221 (Carter) – The Housing and Emergency Shelter Trust Fund Acts of 2002 and 2006: supportive housing. AB 1103 (Huffman) allows localities to count foreclosed homes and second units converted into deed-restricted homes toward their regional housing needs assessment requirement. Allows cities and counties to plan to meet up to 25 percent of their Regional Housing Needs Allocation targets by converting foreclosed homes into homes affordable to low- and very low-income households. SB 562 (Committee on Transportation and Housing) Housing omnibus bill. Water & Waste AB 54 (Solorio) establishes new requirements for organizing and operating mutual water companies.   AB 359 (Huffman) would encourage the sustainable management of groundwater resources by requiring, as a condition of receiving a state grant or loan, local agencies to including a map of prime recharge areas in their groundwater management plans. It would then require these maps to be shared with the planning agencies, interested parties and organizations. AB 938 (M. Pérez). Public water systems. This bill would add environmental documentation to the costs of a single project that the department is required to determine by an assessment of affordability AB 964 (Huffman) authorizes any person to obtain a right to appropriate water for a small irrigation use. AB 1221 (Alejo) – State Water Quality Control Fund: State Water Pollution Cleanup and Abatement Account. SB 267 by (Rubio) – Water supply planning: renewable energy plants. SB 607 (Walters) – State Water Resources Control Board: water quality: brackish groundwater treatment. Environment, Parks & Open Space AB 42 (Huffman) allows the state to explore partnerships with non-profit organizations that can help support state park system.   AB 566 (Galgiani) amends the Surface Mining Act (1975) to include additional legislative findings, including, among other things, that the state's mineral resources are vital, finite, and important natural resources and the responsible protection and development of these mineral resources is vital to a sustainable California. AB 703 (Gordon) – Property taxation: welfare exemption: nature resources and open-space lands. AB 1036 by Assemblymember Michael Allen (D-Santa Rosa) – Parks: regional park, park and open-space, and open-space districts: employee relations. AB 1077 by Assemblymember Wilmer Amina Carter (D-Rialto) – State parks: Colonel Allensworth State Historic Park. AB 1112 (Huffman) Oil spill prevention and administration fee: State Lands Commission.  AB 1414 (Committee on Natural Resources) Forestry: timber harvesting. SB 152 (Pavley). Public lands: general leasing law: littoral landowners. Requires the State Lands Commission to charge rent for a private recreational pier, as defined, constructed on state lands and would require the rent to be based on local conditions and local fair annual rental values SB 328 (Kehoe) revises the Eminent Domain Law to establish requirements for acquisition of property subject to a conservation easement.  SB 436 (Kehoe) – Land use: mitigation lands: nonprofit organizations. Revises these provisions and would additionally authorize a state or local public agency to authorize a nonprofit organization, a special district, a for-profit entity, a person, or another entity to hold title to and manage an interest in property held for mitigation purposes, subject to certain requirements. SB 551 (DeSaulnier) – State property: tidelands transfer: City of Pittsburg. SB 618 (Wolk) allows landowners and local officials to simultaneously rescind Williamson Act contracts and enter into easements allowing photovoltaic solar facilities on the same land.  SB 668 (Evans) – Local government: Williamson Act. Authorizes a nonprofit land-trust organization, a nonprofit entity, or a public agency to enter into a contract with a landowner who has also entered into a Williamson Act contract to keep that landowner's land in contract under the Williamson Act, for a period of up to 10 years in exchange for the open-space district's, land-trust organization's, or nonprofit entity's payment of all or a portion of the foregone property tax revenue. SB 792 (Steinberg) – Surface mining: mineral resource management policies. SB 860 by Committee on Natural Resources and Water – Tidelands and submerged lands: public trust lands: mineral rights. Infrastructure & Transportation AB 529 Gatto (D-Burbank) – Vehicles: speed limits: downward speed zoning. AB 615 (Lowenthal) supplements Budget Act appropriations by appropriating $4,000,000 from the High-Speed Passenger Train Bond Fund to the authority for the Los Angeles to San Diego segment. AB 628 (Conway) – Vehicles: off-highway vehicle recreation: County of Inyo. AB 664 (Ammiano) allows San Francisco to form special waterfront Infrastructure Financing Districts for the Port America's Cup and Treasure Island areas.   AB 706 (Torres) – Metro Gold Line Foothill Extension Construction Authority. AB 716 (Dickinson) – Transit districts: prohibition orders: Sacramento Regional Transit District: Fresno Area Express: San Francisco Bay Area Rapid Transit District. AB 751 (Cedillo) concerns a freeway segment to be constructed without an agreement within the jurisdiction of the Los Angeles County Metropolitan Transportation Authority. AB 957 (Committee on Transportation) – Transportation omnibus bill. AB 892 (Carter) Department of Transportation: Environmental Review Process. Allows CalTrans to continue its participation in the National Environmental Policy Act delegation pilot program in SAFETEA-Lu or any successor federal transportation reauthorization legislation.  AB 1027 (Buchanan) requires local publicly owned utilities to provide space on their utility poles for use by communication service providers. AB 1097 (Skinner) authorizes a state or a local agency, relative to the use of federal funds for transit purposes, to provide a bidding preference to a bidder if the bidder exceeds Buy America requirements applicable to federally funded transit projects. AB 1143 (Dickinson) – Sacramento Regional Transit District: bonds. AB 1164 (Gordon) – Federal transportation funds. AB 1298 (Blumenfield) – Vehicles: parking: mobile billboard advertising displays. SB 310 (Hancock) allows cities and counties to adapt Infrastructure Financing Districts and other incentives for transit priority projects.   SB 325 (Rubio) enacts the Central California Railroad Authority Act to create the Central California Railroad Authority as an alternative for ensuring short-line railroad service in the Counties of Kern, Kings, Tulare, Fresno, and Merced. SB 468 (Kehoe) Department of Transportation: north coast corridor project: high-occupancy toll lanes. SB 771 (Kehoe). In regards to programs of the California Alternative Energy and Advanced Transportation Financing Authority, expands the definition of "renewable energy" to include energy generation based on thermal energy systems such as landfill gas turbines, engines, and microturbines; and digester gas turbines, engines, and microturbines. Local Finance, Governance, & Agency Formation AB 307 (Nestande) includes a federally recognized Indian tribe as a public agency that may enter into a joint powers agreement. AB 506 (Wieckowski) – Local government: bankruptcy: neutral evaluation. A signing message can be found here. AB 912 (Gordon) expedites the dissolution of special districts.   AB 1344 (Feuer) alters the statutory requirements regarding how cities and counties can put a proposed charter before the voters. Increases the noticing period from the regular 72-hour noticing requirement to a 10-week process. AB 1430 (Committee on Local Government) – The Cortese-Knox-Hertzberg Local Government Reorganization Act of 2000 omnibus bill. SB 244 (Wolk) General Plan: Disadvantaged Unincorporated Communities. Mandates General Plans be updated to address disadvantaged unincorporated communities. Cities required to submit dual annexation requests.   SB 555 (Hancock) allows Mello-Roos community facilities districts to finance renewable energy, energy efficiency, and water efficiency improvements on private property.

Sacramento County may not rank among California's great wine countries, but it does appreciate the value of aging. Eight years in the making, the land use element of the county's new general plan update is on the verge of approval by the county Board of Supervisors. In contrast with the contentiousness that has surrounded many other recently updated county general plans, this one—save some concerns about the protection of wild habitats—seems to be pleasing just about everyone.  The plan still holds the theoretical potential to expand the "Urban Policy Area" by up to 20,000 acres. However, in order to direct development towards what county planners explicitly refer to as a "smart growth" pattern, the county has established a novel set of benchmarks that proposed development must meet before they can even think about treading beyond the established Urban Policy Area.  "They have fashioned a really innovative kind of approach that I'm not sure anyone else has done exactly the same way," said Mike McKeever, executive director of the Sacramento Area Council of Governments. County Supervisor Phil Serna called it a "paradigm shift for how the county is going to consider growth in the future."  Critics of the growth management strategy contend that there will be political pressure to not follow through with the plan's density goals, which could then open up greenfields to development more quickly than planners anticipate. "Our big concern is, that despite strong criteria, the actual implementation of projects will involve a never-ending series of concessions and relaxations and decisions that will end up with the kind of development that we have historically seen at the edge of the urban area, which is primarily single-family residential, transportation systems that are inadequate, and more of the same kind of sprawl that we've been getting for the last 15-20 years," said Ron Burness, a member of the Executive Board of the Environmental Council of Sacramento. Last month, the Board of Supervisors tentatively approved, by a unanimous vote, the plan's growth management strategy and will soon consider the land use element. Final votes on both are expected by the end of the year. Supervisors say they have supported the plan because it responds to a host of environmental and economic concerns.  Though disputes and discussions have drawn out the planning process to an absurd duration, stakeholders say that its glacial pace may have averted a planning catastrophe. Had the plan been based on conditions before the real estate market crash, the results could have been disastrous. "When we started out, demand was a lot higher," said Storelli. "As the market tanked, we realized that we needed to scale back because demand wasn't that high. Our board of supervisors still wanted an opportunity to consider new growth areas so we had to come up with some criteria that weren't based off supply and demand." Torrid growth swept over the region in the beginning and middle of the last decade, pushing development into greenfields and creating what critics consider to be economically inefficient and environmentally unfriendly low-density communities. Planners say a general plan update based on these premises would have been useless for a host of changes that have taken place since 2008, most notably the near-death of new development that corresponded with the recession and mortgage crisis.  Contemplating a relatively slow-growth future, county planners turned to a more conservative but flexible scenario that, they say, is designed to limit growth at the urban fringes and encourage development within existing unincorporated communities. A significant portion of Sacramento County's population—roughly 550,000 out of 1.4 million county residents—lives in the county's 23 unincorporated areas. County planners say that SACOG estimates that demand could be for anywhere between 50,000 and 100,000 new housing units by 2030.  Attempts to control where and how development occurs have enjoyed mixed success in the past. The county established a pair of planning tools in 1993 meant to limit the growth of urbanized areas. The Urban Policy Area defines territory where the county provides services and allows growth; it could be expanded to accommodate projected growth for a 25-year period. The Urban Services Boundary, however, is a rigid boundary extending beyond the UPA designed to mark the absolute extent of all future development in the county. Environmentalists and other critics have lamented that in the boom years of the 2000s, the UPA was expanded almost at whim by the Board of Supervisors.  The new land use element attempts to remove political whims from the shaping of the county's growth. Yet, many stakeholders, including environmental groups, are unnerved by the fact that the element still allows for the potential expansion of the UPA by 20,000 acres. However, planners caution that what the plan allows for, and what will actually take place on the ground, are likely to be two vastly different things.  "It doesn't actually open up anything," said Storelli. "If you (developers) meet these very stringent criteria you can initiate an application that would expand the USB and only then would the land open."  For the board to consider extending the UPA or approving a master plan beyond UPA boundaries, developments must meet some combination of the following criteria as outlined in the draft growth management plan:  • A "Justification Statement" that shall be a comprehensive explanation of the proposed request and the development it would allow.  It must include background information, reasoning, and the goal(s) and benefits of the proposed project. • "Significant borders" that are adjacent to the existing UPA or a city boundary.  As a guideline, "significant borders" generally means that the length of the boundary between the existing UPA or city boundary and the proposed UPA expansion/Master Plan should be 25 percent of the length of the boundary of the UPA expansion area.  • A vision of how the development will connect to other adjacent existing and potential future development areas within the USB, including how roadways, transit, sewer, and water could occur within all adjacent areas.  • A variety of housing types and densities, including single-family homes, duplexes, triplexes, accessory dwelling units, townhomes, condominiums, apartments and similar multi-family units, in a variety of settings including both residential neighborhoods and mixed use nodes.  • Design guidelines, development standards and/or similar assurances that will require high-quality development consistent with the vision set forth in the Master Plan.  These criteria are meant to guide growth to infill areas, with particular attention to older commercial strips that, planners say, are ripe for redevelopment. The plan text includes the goal of "enhancing quality of life in every community, as well as utilizing vacant and underutilized lands to accommodate future economic and population growth." This will take different forms in maturing suburban places such as Arden-Arcade, which is nearly fully built-out, as opposed to more rural communities that are expected to experience significant growth.  "It's a more thoughtful approach than just looking at projected housing and jobs and treating it in a sterile, quantitative fashion only," said Serna. "We're trying to address growth in the context of what is that future growth going to mean not just in terms of its land uses but what is it going to be in terms of its connection between land use, transportation, and air quality." As long as that list of criteria may be, its certainty and flexibility may actually be appealing to developers who are desperate for some kind of predictability.  "Previously they were looking at more of a supply-and-demand model, and those numbers can swing from very high to very low, which is what the county has experienced over the eight-year cycle of developing their general plan," said John Costa, Senior Legislative Advocate of the North State Building Industry Association. "This provides a better framework for projects moving forward in the planning process and have a better idea of what they are developing for." While developers may need some time to wrap their minds around this new approach to development, one group that welcomes the county's approach wholeheartedly is the Sacramento Area Council of Governments. SACOG is responsible for preparing the region's Sustainable Communities Strategy as mandated by Senate Bill 375, the 2008 law requiring major metro regions to reduce per capita greenhouse gas emissions by better integrating land use and sustainable transportation policies. Though SACOG's SCS is only in the early planning stages, SACOG and the county planning department collaborated to ensure that the general plan update—and the projects that result—would reflect the same goals and values as the SCS.  "They may end up entitling some projects that meet their smart growth criteria that have more market capacity than will fit inside our SCS in any given planning cycle, but that's fine," said McKeever. " This collaboration represents a new approach to the interplay between local and regional planning. Defanti noted that the economic climate was not the only thing that changed in the last eight years.  "Throughout this process, the economy has violently fluctuated on us and that the regulatory environment has fluctuated as well," said Defanti. "Central to that has been SB 375." Serna echoed that sentiment, saying "it is a new day and we do have a responsibility to respond to a different regulatory and different legislative environment."  That regulatory change has, according to McKeever, made metropolitan planning organizations, such as SACOG, even more relevant to local planning efforts.  "The actions of MPOs are now front-and-center, so even though it's a little bumpy in some regions, everyone is looking in much more detail at how these regional plans are built," said McKeever. Area developers remain anxious about what form infill development will actually take in a county that has historically embraced single-family, low-density development.  "The difficulty that we've seen through the process is that the density levels are higher than we're used to in this area," said Costa. "Some members have concerns about whether that's viable to build." Burness pointed to three developments already in the planning stages that would extend the urban fringe, as well as potential annexations by cities including Folsom and Sacramento.  "All of these efforts on the part of landowners by and large (have pushed) at the edges of the urban area," said Burness.  Costa rejects the contention that the new plan would foreshadow rapid suburban growth.  "You may see projects in the planning stages, but we don't believe that the county is going to open up this area to growth anytime soon," said Costa. He added that many BIA members focus on infill and not just on greenfield development.  As well, county planners contend that the growth management strategy has built-in disincentives to greenfield development.  "Any new development that would be coming forward would have to show how it pays for itself, and hopefully would be a net benefit to the county," said Defanti.  Contacts & Resources:  Rob Burness, Executive Board, Environmental Council of Sacramento, 916.444.0022 John Costa, Senior Legislative Advocate, North State Building Industry Association: 916.751.2753 Dave Defanti, Senior Planner; Cindy Storelli, Principal Planner; Planning Division, County of Sacramento, 916.874.6141 Mike McKeever, Executive Director, Sacramento Area Council of Governments, 916.321.9000 Phil Serna, Supervisor, County of Sacramento, 916.874.5485

The California Supreme Court announced today that it will hear oral arguments in San Francisco on  California Redevelopment Association v. Matosantos on November 10. The lawsuit challenges the constitutionality of the state's plan to eliminate redevelopment agencies unless they agree to pay $1.7 billion for FY 2011-12 and $400 million in subsequent budget years. The initial petition was filed on July 18 by the California Redevelopment Association, the League of California Cities, and the cities of San Jose and Union City. The suit claims that the state's budget plan runs afoul of Proposition 22, which passed last yaer and was designed to protect local funds from state captures. In August, the Court agreed to hear the case on an expedited basis, in order to reach a decision before Jan. 15, 2012, when the first payments under AB 1x 27 are due.

In the ongoing billboard wars that have taken place up and down the state in recent years, the advertisers have won the latest legal battle.  In Hill v. San Jose Family Housing Partners, the Court of Appeal for the Sixth Appellate District held: (1) that a written easement for a billboard was enforceable, even if the billboard was constructed in an illegal manner; and (2) that the servient owners of a development that unreasonably interfered with the visibility of the billboard could owe the billboard owner damages for lost profits. Plaintiffs James C. Hill and Dawn L. Hill and defendants San Jose Family Housing Partners (SFJHP) own adjacent parcels of land located along U.S. Highway 101 in San Jose. Since the 1970s, the Hills have owned and operated a two-sided commercial billboard on a section of SJFHP's parcel, near the joint property line. In 2000, the Hills and SJFHP's predecessors in interest entered into a written easement agreement relating to the Hills' use of the billboard.  The purpose of that easement was " o do all things necessary and incidental to the operation of the business of a billboard including, but not limited to, placement, construction, reconstruction, maintenance and repair of the billboard … all to facilitate the billboard business or any other lawful purpose associated with the use of the Dominant Tenement." The easement also expressly provided that "no structures, vegetation, or other objects will be allowed to interfere with or encroach on the easements in the above described Grant Deed and as, herein, referenced." In or about 2007, the Hills learned that SJFHP planned to construct on its property a multi-unit residential development, which would obstruct the view of the billboard's north face. The Hills brought a lawsuit against SJFHP in 2007 for injunctive relief and damages.  In that lawsuit, SJFHP raised an affirmative defense that the easement is unenforceable because the billboard was constructed and maintained in violation of county and city building codes and ordinances. The trial court rejected that defense. The trial court also held that the easement agreement must be interpreted "to allow viewing of the billboard," and that SJFHP's development interfered with the Hills' easement by obstructing it. The trial court therefore awarded damages in the amount of $778,539, which included lost future profits through 2037.  After trial, the City of San Jose issued a compliance order that directed removal of the "illegally constructed billboard." SJFHP moved for a new trial on the grounds that this newly-discovered evidence of the city's actions would substantially reduce or eliminate the lost profits portion of the Hills' damages award. The trial court denied the motion. SJFHP appealed.  On appeal, the court affirmed the trial court's determination as to the illegality defense. SJFHP argued that if the billboard is itself illegal, its use for advertising is also illegal, and therefore the easement agreement is unenforceable. The court disagreed. This was not a case where the parties entered into an easement agreement that allowed for an illegal use of the property. The court explained: "The Hills' action to enforce the easement is entirely legitimate because the property's use for advertising purposes is not illegal in and of itself. Although the instrumentality of that use, i.e., the billboard, may be illegal, that is not a bar to the enforcement of the agreement."  The court also affirmed the trial court's interpretation of the easement agreement. SJFHP argued that the easement did not prohibit SJFHP from developing its property since such development does not restrict the Hills from operating, maintaining or accessing the billboard (even if that development reduced the profitability of that billboard business). The court disagreed. Instead of seeking an impermissible easement for light, air or view, the Hills were seeking enforcement of an easement that expressly provided that its purpose is to allow for the operation of a billboard business. The court explained: "Since the point of a billboard is that it be visible to potential consumers, it is clear the intent of the easement was to prohibit unreasonable interference with the structure's visibility. Such interference would necessarily impinge on the Hills' operation of the billboard business…. t is clear the parties to the easement agreement necessarily intended that the billboard must be visible to passing motorists." However, the court reversed the trial court's judgment and order, denying the motion for a new trial, in light of the evidence regarding the city's post-trial efforts to remove the billboard. The court remanded the matter for retrial on the issue of damages, and directed the trial court to stay the retrial pending a final resolution of the city's removal actions. The Case:  Hill v. San Jose Family Housing Partners (2011) Cal.App.4th, Filed Aug. 23, 2011. No. H034931. Cal. App. LEXIS 1101 The Attorneys:  For the Plaintiffs/Respondents: Law Office of Scott S. Furstman, Scott S. Furstman; Law Office of Paul J. Derania, Paul J. Derania  For the Defendant/Appellant: Incorvaia & Associates, Joel L. Incorvaia, Lavanya Ramachandran, and G. Ehrich Lenz  Glen C. Hansen is an attorney in the law firm  Abbott & Kindermann , LLP, of Sacramento.

As with most things in life, one person's gain is another person's loss, and public-private partnerships are not exempt from these types of tradeoffs. To the state engineers and their representative union, the contracting out to private engineering firms of engineering services traditionally performed by Caltrans engineering staff represents one of those zero-sum games. This becomes the backdrop to a challenge to the Phase II improvement work on Doyle Drive, the highway approach to the southern terminus of the Golden Gate Bridge. At the heart of the litigation is Streets and Highways code section 143, a section permitting public private partnerships. This statute allows Caltrans to hire outside engineering companies for work traditionally performed by Caltrans engineering staff. Work on Doyle Drive dates back to 1998, when, through a series of cooperative agreements between Caltrans and San Francisco County Transportation Authority (SFCTA), SFCTA undertook a number of feasibility studies for improving the roadway. In 2009, the Legislature significantly expanded potential opportunities for public private partnerships, also known as P3s. Caltrans ultimately awarded a P3 contract to a private contractor, and a separate cooperative agreement with SFCTA. The agreements called for a supervisorial role for Caltrans, but project construction would be the responsibility of the private contractor. The state Professional Engineers union filed suit, seeking to set aside the contract and enjoin the action. The trial court denied relief, which was affirmed on appeal. The plaintiff's primary attack claimed the project did not qualify as a P3, as Caltrans had not been acting as a responsible agency, as the initial engineering work had been performed by private consultants working for SFCTA. Responding to an argument over legislative interpretation, the appellate court ultimately concluded that responsible agency status required Caltrans to be responsible for the work, not that it was required to perform the work. The court held that, under the terms of the various agreements, this element was satisfied. Given the current state budget pressures in Sacramento, it will be worth watching to see whether or not the less-government-rather-than-more movement will make further inroads into contracting out services traditionally performed by agency employees. The Case:  Professional Engineers in California Government v. Department of Transportation (2011) Cal.App. 4th No. A131449, 2011 DJDAR. Filed August 8, 2011. The Attorneys:  Somach Simmons & Dunn, Jennifer T. Buckman, Kanwarjit S. Dua and Gerald A. James for Plaintiffs and Appellants Ronald W. Beals, Chief Counsel, Thomas C. Fellenz, Deputy Chief Counsel, Todd Van Santen, Assistant Chief Counsel and Erin E. Holbrook for Defendants and Respondents California Department of Transportation et al. Nossaman LLP, Stephen N. Roberts, Stanley S. Taylor III for Defendants and Respondents San Francisco County Transportation Authority et al. Stoel Rives LLP, Barbara A. Brenner and Craig A. Carnes for Amicus Curiae American Council of Engineering Companies of California William W. Abbott is a senior partner in the law firm Abbott & Kindermann , LLP, of Sacramento.

When the City of Morgan Hill annexed an 80-acre plot of land over public outcry, city residents fought back by approving ballot measures limiting the development that could take place on that parcel. With a recent appeals court ruling – 31 years after the initial annexation -- a developer's project is high and dry, with the court ruling that the city's actions did not amount to inverse condemnation or illegal spot zoning.  In Arcadia Development Co., v. City of Morgan Hill, Arcadia Development filed a petition for writ of mandate and a complaint for damages against the City of Morgan Hill over an initiative measure placed on the ballot by the city and approved by the voters in 2004. Arcadia argued that the city illegally spot-zoned its 69-acre property, inversely condemned the property, and sought damages for violating its civil and equal protection rights. Both the trial court and the appellate court rejected Arcadia's claims. Background On March 19, 1990, despite great public opposition, the Santa Clara County Local Agency Formation Commission approved the annexation of an 80-acre property owned by Arcadia Development Co. into the urban services area of the City of Morgan Hill.  Within a few months, Arcadia had entitled 11 acres of its property. Thus, 69 acres remained undeveloped. On December 8, 1990, voters of Morgan Hill approved Measure P, which amended the city's zoning code to restrict the density on lands annexed on or after March 1, 1990 to that which was allowed by the county's general plan prior to annexation. The measure and new ordinance had the effect of zoning Arcadia's un-entitled property (now only 69 acres) to 20-acre minimum lot sizes and limiting the development rights on the property to four single-family homes (versus 354 homes under the City's general plan). The terms of Measure P would expire in 2010. On April 17, 2004, Measure C was approved by city voters, which prohibited the city from applying to LAFCO or otherwise requesting or supporting the addition of any land to its urban services area until the existing infill land is insufficient to accommodate five years of growth. It also contained the same density restriction for lands annexed on or after March 1, 1990 as the previous Measure P adopted by the voters in December 1990. The terms of Measure C expire in 2020. Legal Issues Arcadia sued the city over Measure C in 2004 arguing the city illegally spot-zoned its site, inversely condemned the property; it sought damages for violating Arcadia's civil rights and equal protection rights. The inverse condemnation cause of action was dismissed. The trial court ruled in favor of the city on all remaining claims, which Arcadia appealed. On Appeal On appeal, the Court of Appeal, Sixth Appellate District, analyzed whether the city abused its police power by illegally spot zoning the Arcadia property. Here, the court found that because other land surrounding the Arcadia property had equally or more restrictive zoning (two sides of the property were bounded by 20-acre minimum agricultural sites) and no development surrounding the property had occurred since 1990, when the density restriction initially took effect, the city did not illegally spot zone the site.  Arcadia's equal protection challenge was also unsuccessful at the appellate level. Even in accepting the fact that the city's new ordinance singled out Arcadia's property for differential treatment, the court still sided with the city. The issue was whether there was any rational basis related to the public welfare for the restriction imposed. The appellate court explained that the first inquiry into the issue must start with asking whose welfare is to be benefited by the ordinance at issue. A balancing of competing interests is undertaken and then the court must decide whether the ordinance has a rational basis.  In distinguishing the Arnel Development Co. v. City of Costa Mesa (1981) 126 Cal.App.3d 330 (holding that an initiative to down-zone a site was not rationally related to the general regional public welfare, but was rather an attempt to address only localized development concern) asserted by Arcadia, the court noted that there was an extreme shortage of low to moderate income housing in the City of Costa Mesa and in down-zoning Arnel's site, the city had not addressed the regional housing shortage concern. Comparing the Arnel case to Arcadia's, the court noted that the public welfare concerns outlined in Measure C were legitimate in that they attempted to reduce the burden on the city's resources by discouraging noncontiguous development and urban sprawl. Moreover, the city had a legitimate goal of preserving the city's unique rural character. Comment The holdings in this case reinforce the long-standing rules regarding both spot zoning and equal protection. In sum, an agency does not abuse its police power in zoning unless it acted arbitrarily. Similarly, so long as there is a rational basis related to the public welfare for the restrictions imposed, no violation of equal protection will be found – even where an entity or parcel is singled out as was the case here.  The Case:  Arcadia Development Co., v. City of Morgan Hill (2011), filed August 5, 2011.  The Lawyers:  For Arcadia Development Co.: SSL Law Firm, Michael Burke, Diane K. Hanna For the City of Morgan Hill: Shute, Mihaly & Weinberger, Ellison Folk Katherine J. Hart is an attorney with Abbott & Kinderman, LLP , of Sacramento.

The first article I ever wrote for CP&DR concerned the generationally decrepit state of Los Angeles' Westwood Village (see CP&DR Vol. 23, No. 6 June 2008 ). In the three years that have passed since then--despite my blistering expose (of one of the city's most open secrets)--it's only gotten worse. Storefronts are vacant. Bars are sad. Only the Trader Joe's seems to be making any money, and that's because, well, it's Trader Joe's. I saw Moneyball the other night at the cavernous, turreted Village Theater with maybe 20 other people in its 1,000 seats.  For the uninitiated, Westwood is no inner-city slum. It's next door to UCLA and, beyond that, Bel Air. Yes, that Bel Air. Of the Fresh Prince, gated estates, and obscene amounts of money fame.  But, for the most part, the city has treated Westwood Village about as well as it has treated its homeless population: with more resignation than hope. It remains grungy and avoided even though it has, arguably, the best, most pedestrian-friendly streetscape in the entire city. No wonder Angelenos think it's cursed.   This Monday UCLA's cityLAB, in conjuction with the Hammer Museum and Westside Urban Forum  (disclosure: I am a former board member), will try to exorcise a few demons with "Curse and Vision: the Future of Westwood Village," a charette/competition to imagine what the Village could be a generation hence. CityLab enlisted two local architecture firms, Neil M. Denari Architects and Roger Sherman and Associates, to imagine what Westwood could be if hair salons, CVS pharmacies, and the Aahs! novelty shop were kicked out and replaced by something that reflects the district's geographic and cultural centrality in West Los Angeles.  Dana Cuff, director of cityLAB, instructed the firms to forget about the gang shootings, economic stagnation, and UCLA football defeats and focus on the streets and the area's inherent virtues.  Last week I attended a preview event at which the two teams have presented concepts that, on face, seem outrageously bold--and breathlessly exciting.  Neil Denari and his team approach their vision by asking what in the blazes an "urban village" even is. I don't think anyone quite knows, though it's an appealing notion to think that it's something more self-contained, defined, and dynamic than a neighborhood but not merely part of the cityscape. Westwood and Noe Valley are probably villages; Koreatown and the Tenderloin are not.  Denari envisions the Village as a high-density district of mid-rise towers that would be almost off-limits to automobiles but served generously by Metro's planned subway extension, with a station in the heart of the Village. Denari's paln would partially bury Wilshire Boulevard—an eight-lane torrent that makes approaching the Village on foot agonizing experience—and deck it over with a pedestrian plaza, the likes of which are rare in Los Angeles. Skinny towers would pop up like giraffes throughout the Village's irregular streetscape. This vision, which would surely increase the Village's jobs and residential density, acknowledges the Village's geographic centrality on the Westside. It is in the middle of everything and therefore should serve as many people as possible.  Roger Sherman & Associates focused less on the physical form of the Village than on its potential cultural significance. The paradox of the Village is that, despite its vacancies, it has two of the remaining great single-screen movie theaters, plus a museum, a second-their live theater, and all the museums and performance spaces of UCLA. But it's hard to take in Shakespeare or contemplate Van Gogh when you have to wash them down with Subway and hookah.  Sherman's team therefore proposed an ingenious stroke of urban acupuncture: demolish the public parking structure in the middle of the Village and replace it with a public plaza dedicated to the arts. Sherman's model includes all sorts of creative flourishes, such as video art projected on exterior walls and enormous public sculptures. He proposes that the institutions get involved: specifically that UCLA relocate at least one of its theaters to the village so that it can do what theater does best: enhance public life. Like Denari, Sherman envisions the addition of tufa-tower type residential buildings with lofts, studios, and rooftop patios where artists and other creative-types can live.  Neither of these visions has anything to do with the way that planning takes place today—they are more like architecture school projects that co-opt a place over which they have no dominion over anything except, surely, the passions of neighbors who are going to blanche at the sight of the teams' renderings. And both present such astoundingly novel interpretations of the Village that it's impossible to imagine that they would ever amass political support or that they would survive once enshrined in the bureaucracy of a zoning code. Then again, when most of West Los Angeles was occupied by nothing but scrub brush, the original Westwood Village was itself a radical notion. Both, therefore, rely on the audacity of hope: that after 20 years of malaise stakeholders can begin to believe that Westwood is not cursed.  The larger lesson for all California cities is that we will someday get out of this recession and will someday get back to making, and realizing, big plans. By the time that happens, traffic will be thicker and Californians will be more numerous—and they might even want great places in which to live, work, and take a stroll. Westwood has always had great bones, with its nearly Medieval tangle of streets. Maybe some day someone will exhume them, break the curse, and create life anew.  Curse and Vision: The Future of Westwood Village Public Symposium by UCLA's cityLAB When: Monday, October 10, 2011, 4:00-6:00 PM Where: Hammer Museum, Billy Wilder Theater / 10899 Wilshire Boulevard, Los Angeles http://www.citylab.aud.ucla.edu/projects/westwood-village/

Against the protests of many environmental and community groups -- but with the support of developers and builders -- Gov. Jerry Brown signed Senate Bill 226 (Simitian) yesterday, ushering in what some consider a new era of reform to the California Environmental Quality Act.   SB 226 includes the following alternations to CEQA:  1.  Exemptions for projects that include the installation of solar power generating systems on the roofs of existing structures and for plants that are converting from solar thermal to photovoltaic systems.  2.  New guidelines for scoping meetings regarding projects of "statewide, regional, or areawide" significance.  3.  The Secretary of the Natural Resources Agency will certify and adopt guidelines to include a list of classes of projects that have been determined not to have a significant effect on the environment and can therefore receive categorical exemptions. 4. The Office of Planning and Research, on or before July 1, 2012, will prepare guidelines for statewide standards for infill projects that would promote "green" goals. 5.  Limit the application of CEQA in the case of the approval of an infill project that satisfies the standards that OPR will be preparing. Both proponents and opponents contend that the last provision could have a dramatic impact on California cities by streamlining the development of infill projects. Environmental groups are concerned that an overly broad definition of infill could lead to high-density development in locations whose infrastructure and transportation networks are inadequate. Some critics even contend that the law could "dismantle CEQA" and undermine Senate Bill 375 by facilitating development in locations that are not well served by transit and that will, as a consequence, increase vehicle miles traveled and greenhouse gas emissions.   Curiously, the governor's signing statement refers only to the law's impact on the development of rewnewable power plants but makes no mention of its provisions regarding infill development.

By now, most CEQA practitioners have faced the problem of what to do when a project opponent submits the attorney general's 18-page list of potential greenhouse gas mitigation measures, when many of the measures in the list may not be appropriate for a particular project.  On June 30, 2011, the Court of Appeal for the Second Appellate District held that the lead agency is not required to explain why each of the proposed measures is inappropriate for the project at issue.  The City of Santa Clarita approved a master plan for the expansion of Henry Mayo Newhall Hospital by adopting a statement of overriding considerations and certifying the final environmental impact report for the project. The city also adopted a development agreement between it and the real parties in interest, and adopted the master plan.  The project would expand the amount of hospital and medical office space on the existing site from its current size of 340,071 square feet to 667,434 square feet and would add nine proposed structures over a 15-year period.  A citizens group named Santa Clarita Organization for Planning the Environment (SCOPE) challenged the project approvals on two grounds: 1) the city's conclusion that complete mitigation of the project's impact on climate change was infeasible was not supported by substantial evidence or adequate analysis; and 2) that the city had abused its discretion in making the findings required by the city's uniform development code.  Climate Change The city prepared four draft EIRs for the project between November 2005 and September 2008. In June 2008, the Governor's Office of Planning and Research issued a technical advisory calling for lead agencies to "make a good faith effort, based on available information, to calculate, model, or estimate the amount of CO2 and other GHG emissions from a project, including emissions associated with vehicular traffic, energy consumption, water usage, and construction activities." The city's third draft EIR calculated the greenhouse gas (GHG) emissions from the project, including three categories of emissions: Scope 1 included emission sources owned or controlled by the Project; Scope 2 included GHG emissions from energy; and Scope 3 included indirect emissions that are consequences of activities of the project but which are not owned or controlled by the project, including GHG emissions from transportation sources. The city concluded that impacts from Scope 1 and 2 GHG emissions would be less than significant, but Scope 3 emissions would remain significant and unavoidable despite the implementation of recommended mitigation measures. SCOPE, the petitioners, claimed the city did not provide an adequate explanation for this conclusion or provide substantial evidence in support of the finding that the impact would remain significant and unavoidable. Adequate Explanation for the City's Conclusion SCOPE had submitted a comment on the EIR and included with its comments a list of potential mitigation measures that had been developed by the Office of Attorney General. SCOPE requested that the city incorporate the measures into the project approval. The city responded to the comment, indicating that certain aspects of the project design were consistent with the attorney general's proposed mitigation measures. The city did not address every mitigation measure in the attorney general's list.  Citing to Los Angeles Unified School District v. City of Los Angeles (1997) 58 Cal.App.4th 1029, the petitioners claimed the final EIR violated CEQA because it did not specifically consider and discuss the mitigation measures in the Attorney General's letter. In Los Angeles, the petitioner suggested a specific, concrete mitigation measure to mitigate a specific air quality impact, whereas in Santa Clarita, petitioners had attached the attorney general's list of mitigation measures to a letter to the city. The court found that because SCOPE did not single out any specific suggestions from the numerous potential mitigation measures in the attorney general's letter, and the letter itself stated that "the measures cited may not be appropriate for every project," it was unreasonable to impose on the city an obligation to explore each and every measure.  Substantial Evidence Supports the Finding  SCOPE also argued there was an absence of evidence to support the city's determination that the mitigation measures set forth in the attorney general's letter were infeasible. SCOPE further claimed that the city's finding that significant cumulative impact on climate change would be unavoidable was unsupported because neither the city's findings nor the FEIR contained any facts or analysis to support this conclusion.  The court found that substantial evidence did support the city's finding. The court noted the OPR technical advisory was one of the only documents providing guidance on GHG emissions at the time the EIR was prepared. The EIR followed the three steps set forth in the advisory: 1) identify and quantify GHG emissions; 2) assess the significance of the impact on climate change; and 3) if the impact is found to be significant, identify alternatives or mitigation measures.   The EIR quantified the emissions from the project and found the emissions with respect to Scopes 1 and 2 were insignificant. With respect to Scope 3, the EIR pointed out that emissions from vehicle exhaust are regulated by state and federal governments and are outside the control of the project. The EIR noted that no thresholds had been established, but concluded that it was likely that if a threshold were adopted, the Scope 3 emissions would exceed the threshold. The project included eight mitigation measures which had been introduced to ease the flow of traffic, and thus reduce GHG emissions. As well, the city had committed to comply with new standards requiring the project comply with the city's sustainable policies and transportation demand management program. The court found this to be substantial evidence to support the agency's decision that the EIR complied with CEQA. 3.  Health and Welfare of Neighboring Residents SCOPE claimed the city failed to proceed in the manner required by law because it balanced the project's perceived benefits against its adverse impacts on neighboring residents. The City of Santa Clarita's uniform development code requires the city find a proposed development will not "adversely affect the health, peace, comfort or welfare of persons residing or working the surrounding area." The city balanced the benefits of the project against the impacts on the surrounding neighborhood in making the required finding. Petitioners claimed the plain language of the section did not permit that type of balancing.  The court found the plain language of the uniform development code did not foreclose the balancing of the benefits versus the detriments, the city's interpretation of its own ordinance was entitled to great deference, and the ordinance does not limit the factors that may be considered in making the finding. Therefore, the court found that the city proceeded lawfully.  Conclusion Practitioners now have support for the decision not to address every mitigation measure thrown at a proposed project. The case should be read with caution, however, because it could easily be distinguished in cases where the list of proposed mitigation measures is more closely tailored to the proposed project.  The Case: Santa Clarita Organization for Planning the Environment v. City of Santa Clarita (June 30, 2011, No. B224242) __ Cal.App.4th ___.  The Attorneys: Law Offices of Babak Naficy and Babak Naficy for Plaintiff and Appellant. Carl K. Newton, City Attorney; Burke, Williams & Sorensen, Brian A. Pierik and Amy E. Hoyt for Defendants and Respondents. Leslie Z. Walker is an attorney with the firm of Abbott & Kinderman, LLP.

There was a time when the biggest opponents to infill development were the interstate highway, the barbeque grill, and the American dream. Following the failure of Assembly Bill 710, you might be able to add advocates of affordable housing to the list. Sponsored by Assemblymember Nancy Skinner (D-Berkeley), AB 710 sought to promote infill development by requiring cities to lower baseline parking requirements for residential and commercial development in transit-intensive areas statewide. It would have halved the common practice of requiring two spaces of parking per residential unit or 1,000 square feet of commercial space. Though cities set their own standards, parking requirements are typically derived from the Institute of Transportation Engineers' Parking Generation. Those standards are meant to apply nationwide and include what some consider absurdly detailed recommendations that overestimate parking needs and are insensitive to urban context. They are outdated at best, say AB 710's supporters. "It's very difficult for cities to change these parking standards because they're based on mythology," said California Infill Builders Association (CIBA) board member Mott Smith, a Los Angeles infill developer. "If they were based on facts, we could have an easy conversation about what the facts are and adjust accordingly." Opposition came from, what many consider, a highly unlikely source: advocates of affordable housing. Housing advocates such as the Southern California Association of Nonprofit Housing (SCANPH) contended that AB 710 would undermine what they consider important incentives in Senate Bill 1818, the 2004 law that gives both nonprofit and for-profit developers density bonuses for including or increasing affordable housing in a given development. One of those incentives trumps local parking codes by allowing developers to supply less than the typical two spaces per one-bedroom or studio unit in exchange for the inclusion of affordable units. "We have 30 years of history with density bonus law that recognizes the value of trading a planning concession, whether it be height, density, or parking for supplying the mix of incomes in a project," said Lisa Payne, policy director at SCANPH. "This bill would have removed that tool." Julie Snyder, policy director for Housing California, said that she did not doubt that lowered parking requirements would make development less expensive. But she questioned whether those savings would be passed on to residents.  "While we agree with the basic concept of ensuring communities are not 'overparked,'" said Snyder, "we believe this policy should be crafted in concert, rather than in conflict, with state policies that achieve valuable housing affordability goals." Affordable housing advocates were not, however, the only opponents of AB 710. The League of California Cities also expressed concerns that it amounted to an undue imposition on cities in an arena where cities generally enjoy local control. "It was a one-size fits all mandate," said League legislative representative Kirstin Kolpitke. "We feel that it doesn't address the needs of each individual community. If local officials decide to build in a green or SB 375 manner, their reward for creating the transit-intensive area is that they're stuck with the requirements of the bill." AB 710 is, thus far, the signature effort of the fledgling CIBA, which formed last year to promote high density development in urban areas. Smith and CIBA president Meea Kang said that AB 710 was written to benefit nearly every conceivable constituency, including developers of all stripes and cities that are seeking to take advantage of infrastructure investments. With some parking spaces costing up to $30,000 each to develop, the bill stood to stimulate development amid California's malaise. AB 710 would not have imposed maximums. It would have forbidden cities from using the current standards as minimums, which have in recently years been vilified by scholars and activists alike. "There is a strange affinity we have to cars, which represents everything like freedom and the American way," said Kang. "As a result, we find ourselves in this dysfunction where we know we have to build inside cities." In his 2005 book  The High Cost of Free Parking , UCLA planning professor Donald Shoup traced nearly every urban evil plaguing American cities to what he considered an overabundance of parking spaces--which, he said, causes cities to expand outward unnecessarily and inflates the cost of real estate. The so-called "Shoupista" movement has, since then, been waging battles large and small to undo economic distortions caused by legally mandated free parking. Shoup supported AB 710 and lobbied for it alongside its chief backers from the CIBA. "AB 710 would have, in one fell-swoop, reset the default parking standards that are in place throughout California and the English-speaking world with sensible urban standards," said Smith. Those standards are not so sensible to a vocal group of affordable housing advocates, who fear that AB 710 would undermine established incentives for inclusionary density bonuses. Smith stated that AB 710 could have reduced developers' costs enough to jump-start projects that currently do not pencil out. They recently conducted a survey of both market rate and large affordable developers that, Smith said, revealed $7.5 billion worth of projects that could have been stimulated by AB 710. While many developers were elated by the prospect of AB 710, environmentalists cheered it as well. AB 710 was intended to complement Senate Bill 375, which calls on cities to develop more intensively around transit in order to reduce vehicle miles traveled and, as a result, greenhouse gas emissions. "It reduces the cost of housing development around transit stations, therefore making it easier for people to live near transit, making it more affordable to live near transit, making it easier for developers to build the kind of housing the market is demanding and making it easier to develop walkable communities," said Amanda Eaken, policy director with the Natural Resources Defense Council. Others simply see it as good urbanism. "Purely from an urban design standpoint, it makes all the sense in the world," said Los Angeles-based architect John Kaliski. The bill made a triumphal run through the State Assembly, passing with no opposing votes. It ran aground in the Senate, however, falling two votes short of the 21 needed for passage. The production of affordable housing is generally seen as a nearly perfect complement with infill and transit oriented development. Infill development generally results in dense, accessible, and relatively inexpensive units that fit the budgets of low- and moderate-income residents. "People have to look at creative ways to take advantage of infrastructure and try to reduce the costs of producing housing next to it," said Kaliski. "The smart growth advocates and the housing advocates should be natural allies." (Kang, Smith, and many other members of CIBA produce affordable, as well as market-rate, housing.) The wholesale reduction of parking requirements in transit-intensive areas would constitute, say AB 710's opponents, a recipe for gentrification. It would, therefore, contradict the purpose of state-supported affordable housing development. SCANPH's analysis of AB 710 concluded that reduced parking requirements would eliminate the advantage that SB 1818-compliant units would confer on developments. Market-rate developers would, therefore, have relatively less incentive to produce anything but high-end units that would be unaffordable for low-income, transit-dependent residents. "We're all interested in creating sustainable communities," said SCANPH executive director Paul Zimmerman. "But you can't have a sustainable community unless you've got equity in the way the land is developed. You can't have a sustainable community if you force out the affordable housing that exists because you're pushing out core transit riders." Infill advocates say that this interpretation is preposterous. At the most abstract level, they claim that more housing in the aggregate will, by definition, result in more affordable housing. As a practical matter, the very same incentives that AB 710 gives to market-rate developers will apply equally to developments that are affordable, either in part, or in whole. Moreover, they claim that SB 1818's parking provision--or the absence thereof--will have a negligible effect on for-profit developers and zero effect on nonprofit developers. Zimmerman said that since 2008, the SB 1818 parking provision has spurred the development of 108 units in the City of Los Angeles, plus 45 more in a recently completed development south of downtown. The state Department of Housing and Community Development has estimated that the city's housing deficit grows by over 28,000 units per year. AB 710's backers say that reduced parking requirements would stimulate housing development by all kinds of developers, simply by cutting in half one of a builder's biggest costs. "No one policy move is going to trump the economic climate," said Bill Witte, president of Related Cos. of California, a nationwide for-profit developer that often builds affordable housing. "But I think you're in a situation where every little bit helps." Zimmerman rejects this rationale, saying that anything that benefits market-rate developers necessarily compels them to produce high-end units in exactly the wrong places. He cited a recent study by the Dukakis Center on Urban and Regional Policy at Northeastern University in Boston that found that high-end development has tended to push out residents in new transit-intensive areas nationwide. "The savings to the developer of not including the parking is not going to result in a reduction of sales price or rent," said Zimmerman. "There has to be a link between a developer's financial pro forma and the sustainability of that neighborhood by providing housing at lower price points." That same report, however, lists the reduction in parking requirements as a strategy for counteracting the march of gentrification. The institute's namesake, former Massachusetts Governor Michael Dukakis, a visiting professor at the Luskin School of Public Affairs at UCLA, supports AB 710 and disavowed SCANPH's interpretation of the report in a July 6 email to Sen. Lois Wolk. Dukakis himself was not, however, involved in writing the report. The idea, therefore, that parking reform should depend on SB 1818 and be conflated with the state's affordable housing crisis, rankles AB 710's supporters. Witte, in fact, claimed that some affordable developers use SB 1818 as a bargaining chip with public officials. "This is completely disingenuous. They objected to AB 710 because they felt it would take away one of the tools they have to negotiate community benefit agreements on a one-off basis," said Witte. "That is not how you do planning. That is not how you do development." The League's Kolpitke explained that lower parking requirements might shift the burden of storing cars to city streets, which may or may not be equipped to handle an overflow. She also said that cities might shy away from creating transit-intensive districts because they would not want to accept the lower parking requirements. AB 710 would have allowed cities to use more parking-intensive standards if circumstances warranted them. However, she said AB 710's provision allowing cities to adopt higher parking requirements amounted to an undue burden. That solution did not satisfy the League. "Cities don't exactly have an overflow of cash to be able to do studies and jump through so many hoops that it becomes impractical to exempt themselves out of," said Kolpitcke. The League lobbied actively against the bill as it was being considered by the Senate. The League's efforts to block AB 710 come after a string of painful defeats that cities say they have suffered at the hands of Sacramento. The devolution of state functions to the local level and, most notably, the threatened disillusion of the state's redevelopment system has put cities and the state at odds with each other like never before. "There's a huge locals-versus-state battle that's brewing these days, with everything from Prop. 26 to the dissolution of redevelopment agencies," said Casey Daily, assistant to the mayor of the City of San Bernardino, which supported AB 710. "There's a whole lot of friction between state and locals." As a result, many say that cities were not willing to accept another mandate from Sacramento, even if that mandate has the backing of many progressive planners. Ultimately, AB 710's backers say they are encouraged by the support that the bill received and that they will return next year with a new version of the bill. Throughout all the discussions over AB 710, Smith said he was encouraged by the response to the bill's fundamental purpose. "We're saddened that AB 710 went down, but it didn't go down because people thought we don't have enough parking, and it didn't go down because people think infill is the wrong direction," said Smith. Contacts: Amanda Eaken, Natural Resources Defense Council Deputy Director, Sustainable Communities  415.875.6100 Casey Dailey, Assistant to the Mayor, City of San Bernardino,  909.384.5211 John Kaliski, Principal, Urban Design Studio,  213.383.7980 Kiristin Kolpitcke, Legislative Representative, League of California Cities,  916.658.8200 Meea Kang, President, Infill Builders Association,  infill-builders.org Lisa Payne, Policy Director, SCANPH,  213.480.1249 Mott Smith, Director, Infill Builders Association,  infill-builders.org Bill Witte, President, Related Cos. Of California,  212.801.1000 Paul Zimmerman, Executive Director, Southern California Association of Nonprofit Housing,  213.480.1249

According to some Fresno locals, it was 30 years ago -- perhaps because of Proposition 13, perhaps because of the falling price of grapes -- that the city at the heart of the San Joaquin Valley went into decline. Since then, accusations of corruption, dismal economics, and nearly unmitigated low-density development have made the city both the butt of jokes and one of the nation's most forlorn urban areas. It has not suffered the spectacular fall of, say, Detroit -- but only because it never rose to Detroit's industrial prominence in the first place.  But now Fresno and Detroit have something else in common: They are among the six cities that the Obama administration have chosen to take part in the Strong Cities, Strong Communities Initiative, a pilot program intended to help depressed cities use federal resources to revive their economies.  Administered by the Department of Housing and Urban Development with participation from a wide array of federal agencies that address urban development – including the departments of Transportation, Health and Human Services, and the Environmental Protection Agency – Strong Cities, Strong Communities is intended to help cities leverage federal funds and capitalize on federal expertise in order to execute their own, home-grown economic development strategies. The White House heralds the program as a way to use civic ingenuity to create jobs.  "They're trying to find ways to make the federal government work better for those of us who are working at the local level to make our communities better," said Fresno Mayor Ashley Swearengin. "There are ways in which I think we can streamline and fast-track certain issues that we have to deal with the federal government on." That sort of coordination and quest for efficiency represents a new attitude in the federal government, said HUD District 9 administrator Ophelia Basgal.  "To try to get people out of their particular program areas and think about how you can leverage federal resources in a community," said Basgal. "That's very different from how HUD operated in the past, or DOT or EPA or any other federal agency." Fresno is the lone western city to take part in the initiative. The other cities are Chester, Pa.; Cleveland, Detroit, Memphis, and New Orleans. HUD officials say that because it is a pilot program, cities were not invited to compete for spots in the program. Swearingen said that Fresno was already in the running before she had even heard of the program, which is intended to include a variety of cities with a variety of challenges.  "In Detroit, your issue isn't, ‘do you have enough available land?' It's, ‘what do you do in a city that's shrinking?'" said Basgal. " That's why this pilot approach of having a variety of a different kind of cities facing different issues."  She and city leaders hope, however, that by the time the initiative runs its course that everyone in Fresno will be aware of its impacts on the city.  "We're pleased to finally get national recognition and be identified as a city that has good economic development plans but needs help implementing them," said Swearingen.  Basgal said that Fresno was an obvious candidate for the initiative because of its aggressive and unified approach to economic development and the fact that decades of desperation have, say city officials, recently given rise to a new, more aggressive approach to economic development.  "While we've been hard-hit, the economic challenges we face as a region have been in place for many years," said Swearengin. "I made the case that other cities that were picked because they were poster children for this recession….we are on our way back from long-term chronic unemployment and chronic economic distress. We're primed." The initiative centers on Community Solutions Teams, which consist of representatives from relevant federal agencies who will be embedded in Fresno city hall for a year. Those representatives will work with each other and with city officials to identify ways that existing federal programs and funding opportunities – the initiative includes no formal financial support – can be put to work for the city's benefit.  The team's specific goals have yet to be determined. Swearengin said that the team would spend its first 30 days getting oriented, after which time they would create a list of concrete goals to address in the following 11 months.  "(The initiative is) not something that's completely defined yet," said Balch. "It represents more potential or promise than actually knowing what it is that's going to happen." Many of its goals, say Swearengin, will involve the city's physical character.  "They relate almost entirely to the built environment," said Swearengin. "One of the reasons the team was interested in coming to Fresno was our focus on downtown revitalization, planning for high-speed rail, planning for the expansion of our industrial sector, in particular food-related business, which is key for our region." Swearengin said that the Community Solutions Team will work with staff from the city departments including planning, utilities, and public works. In addition to the Community Solutions Team, the initiative includes a fellowship program that will place mid-career professionals in city agencies. A National Resource Network has also been proposed to provide technical advice and models of best practices for participating cities.  The city's downtown holds particular promise for the team, if only because it has long been considered one of the most moribund and under-performing in the state.  "Downtown was a grand planning experiment," said Basgal. "There's nothing that goes on in downtown Fresno after dark. How to re-create a vibrant downtown is a key to where Fresno goes economically." For generations Fresno has famously promoted dispersed residential development which, in turn, has dissuaded residents from visiting the downtown. As well, the city's reliance on the agricultural sector means that there are fewer traditional downtown jobs and more in the rural areas surrounding the city. Many of the city's 354,000 residents simply cannot afford to patronize the sorts of businesses that downtowns rely on. By some measures, Fresno's quality of life – taking into account poverty levels and other data – ranks dead last among all regions in the United States. In some parts of the city, average annual wages do not break $20,000.  Nonetheless, city leaders see the downtown as the key to creating higher-wage jobs and to attracting businesses that will create a local multiplier.  Basgal noted that one of the region's biggest employers – the Internal Revenue Service – could be enticed to move downtown with the right incentives. The city is also considering turning a moribund Fulton Street pedestrian mall into a traditional street, which city officials hope will lead to more vibrant street life.  "If we really believe that the downtown is the heart and soul of our community and the economics are in conflict with that, then we have to in the short haul boost that effort through incentives of some sort…on the local and the national level," said Al Smith, president of the Fresno Area Chamber of Commerce.   Though many Fresno-area residents might not choose to visit downtown today, the state's planned high-speed rail network could, one day, bring all of California to Fresno, if only for a few minutes. For those passengers who would get on and off in Fresno, the city's high-speed rail depot could, it is hoped, become a catalyst for the city's development.  Though the high-speed rail line is still decades in the offing, city and federal officials are hoping that merely planning for the station will lead to economic benefits regardless of when, or if, the train actually arrives.  "There's always some amount of money that's flowing for transportation," said Balch. "There are always funding streams. So figuring out ways to get them running in the same direction makes sense when things are down." Though high-speed rail is a massive project in and of itself, it is just one component of the state's efforts to curb greenhouse gas emissions. Senate Bill 375 offer further incentives for Fresno to develop its urban fabric in a way that encourages density and discourages automobile use. The city is already drawing up a master plan for growth in its southern section, which will be designed according to the principals of smart growth. The implementation of that growth plan was, according to Basgal, another reason why Fresno was chosen for Strong Cities, Strong Communities.  "Fresno is the most rural of all and the only one on the West Coast," said Basgal. "But it has a lot of great opportunities because of the focus in California on sustainability and planning." Contacts:  Elliot Balch, Fresno Downtown Revitalization Manager, 559.490.9966  Ophelia Basgal, Regional Administrator, Department of Housing and Urban Development, 415.489.6400 Al Smith, President, Fresno Area Chamber of Commerce, 559.495.4800 Ashley Swearengin, Mayor, City of Fresno, 559.621.8000