Attorney General Kamala Harris took the unusual measure of pre-emptively voicing her official opposition to the lawsuit that was filed two weeks ago to overturn the budget bills that force redevelopment agencies to either disband or pay a total of $1.7 billion in "remittances" to the state. The suit was filed by the California Redevelopment Association and the League of California Cities in the state Supreme Court; the petition calls on the court to declare the actions unconstitutional in light of Prop. 22. Though the court has not yet indicated whether it will hear the case – or whether it will grant a requested stay – Harris staked out her position in the form of an "Informal Opposition" <.pdf, 1.4 mb> . In a brief filed with the court last week, Harris affirms what her office considers to be the state's prerogative to support, or disband, redevelopment agencies according to the 1945 legislation that first gave rise to them.  Her brief supports Gov. Jerry Brown's longstanding contention that, by capturing property tax increment, redevelopment agencies are essentially hoarding funds that are needed in light of the state's fiscal crisis. To the central question of whether the dissolution of redevelopment would violate Prop. 22, Harris' brief claims that precedent in California is to defer to the Legislature unless an act is expressly prohibited by the constitution, so that " f there is any doubt as to the Legislature's power to act in any given case, the doubt should be resolved in favor of the Legislature's action." The brief also notes that, while Prop. 22 forbids the direct or indirect transfer of funds from redevelopment agencies to the state, it does not address the Legislature's power to create or dissolve the state's redevelopment system. The brief states, "had the voters intended such a sweeping limitation on the Legislature's power, they certainly could have so indicated in a clearer or more direct fashion." Harris also interprets the two redevelopment budget bills not as a matched pair but instead as independent pieces of legislation. As such, they do not constitute a "Hobson's choice," which is how the petitioners characterize cities' and counties' options to either disband their agencies or pay a remittance fee. Harris contends that the Legislature first eliminated all redevelopment and then "then offered cities and counties that wanted to continue to pursue redevelopment goals an alternative and voluntary mechanism" in the form of the "Voluntary Alternative Redevelopment Program" enacted by AB1X 27. Harris opposes the stay requested in the petition. Virtually only point on which she does agree with the petitioners is that the Supreme Court should exercise its original jurisdiction and rule as swiftly as possible.  --Josh Stephens

A thorough analysis of building codes and local ordinances applicable to seismic hazards provides the substantial evidence necessary to uphold a city's revised environmental impact report, the First District Court of Appeal ruled in Oakland Heritage Alliance v. City of Oakland. In successful challenges under the California Environmental Quality Act, the petitioner generally has a second bite at the apple by challenging the return of the writ. If a petitioner is successful in its challenge to an EIR, the trial court issues a writ of mandate that requires the agency to bring the EIR into compliance with CEQA. Once the agency has complied with the writ of mandate by "fixing" the EIR, the agency files a return of the writ with the court. If the court finds that the city has satisfied the writ of mandate, the court discharges the writ.  In this case, developers Oakland Harbor Partners, LLC, Signature Properties, Inc., and Reynolds & Brown proposed to develop the "Oak to Ninth" project, a development of approximately 64 acres along the Oakland Estuary and the Embarcadero. The development would convert a maritime and industrial area into residential, retail/commercial, open space, and marina use.  Building heights would range from six to 24 stories. The EIR for the project noted a risk of seismic danger, especially because the bay-adjacent site is vulnerable to liquefaction.  The city certified the EIR and adopted mitigation measures with respect to seismic hazards. Community group Oakland Heritage Alliance filed the suit, claiming numerous CEQA violations including that the EIR did not properly mitigate for seismic hazards. The Alliance alleged the city had violated CEQA by certifying the EIR and adopting CEQA findings although the mitigation measures would not reduce the effects of ground shaking, liquefaction, and earthquake-induced settlement to a less than significant level. The trial court granted, in part, and denied, in part, the petition for writ of mandate. The court directed the city to void its certification of the EIR, CEQA findings and statement of overriding considerations, and the approval of the project, and remanded the matter to the City.  The trial court then discharged the writ of mandate after the city submitted a revised EIR. The petitioner, Oakland Heritage, appealed the trial court's discharge of the writ on the grounds the city had still failed to adequately analyze and mitigate seismic impacts. The appellate court disagreed and upheld the trial court's discharge of the writ. Petitioner's challenge focused on three areas relating to seismic impacts: (1) the significance threshold was improper; (2) the mitigation did not adequately mitigate to a less than significant level; and (3) the mitigation constituted an improper deferral of mitigation. Although the petitioner had failed to mention the significance threshold argument during the trial court's proceedings on the return of the writ, and was therefore barred from bringing it up on appeal, the appellate court addressed the issue and found that the significance threshold used to evaluate seismic impacts was proper. The court based its conclusion on two grounds. First, contrary to petitioner's assertions, the city was not required to formally adopt a significance threshold that differed from the threshold listed in Appendix G of the CEQA Guidelines. According to the court, CEQA Guidelines section 15064.7 encouraged the adoption of the standard thresholds of significance, but did not require it. Second, the threshold of significance used by the city "was effectively coextensive with the CEQA Guidelines" Appendix G, and therefore, petitioner's argument had no merit. In relation to the second issue of adequate mitigation, the two mitigation measures adopted by the city required that the buildings comply with all applicable state and local regulations. They also required that the buildings comply with the final design parameters and building recommendations that would be included in the geotechnical investigations for each building site. The appellate court found that substantial evidence supported the city's determination that the mitigation reduced seismic impacts to a less than significant level.  The court cited Tracy First v. City of Tracy (2009) 177 Cal.App.4th 912, which found that the incorporation of state energy efficiency standards into the project constituted proper mitigation. In this case, the thorough discussion of the building codes and local ordinances, as well as the duties of the geotechnical engineer, constituted substantial evidence that the mitigation would reduce impacts. The added discussion provided the required "why" discussion, explaining how code compliance operates as effective mitigation. Like the second issue of proper mitigation, the court disagreed with petitioner's final argument that the two mitigation measures for seismic impacts constituted an improper deferral of mitigation. The court found that the mitigation measures properly included performance standards that had to be met in order to insure that the project impacts would be mitigated. Therefore, the city did not improperly defer mitigation. In the end, the petitioner's attempt to further delay the project and require additional analysis by the city failed. This case provides a good example of the information that agencies should include in the CEQA document when the mitigation involves adherence to state codes and local regulations. A thorough explanation of the state codes and local regulations referred to in the mitigation goes a long way to providing substantial evidence in the record. The Case:  Oakland Heritage Alliance v. City of Oakland (2011, Case No. A126558) 2011 Cal.App.LEXIS 60

Here we go again.  In 2009 the redevelopment agencies of California, represented by the California Redevelopment Association, filed suit to block the state's requisitioning of over $1 billion of tax increment financing. That suit failed.  In Nov. 2010 voters passed Proposition 22, which was backed by the CRA and League of California Cities, to forbid the state from demanding such payments in the future. Facing a $26 billion budget deficit upon coming into office in January, Governor Jerry Brown made an end-run around Prop. 22 by seeking the dissolution of all redevelopment agencies.  With the passage of Assembly Bill 1X 26 and Assembly Bill 1X 27, a pair of budget bills that force agencies to shut down unless their parent jurisdictions – cities and counties – pay a total of $1.7 billion to the state by Jan. 15, 2012, the CRA and League have yet again filed suit.  Same objective. Higher stakes. Different law.  The suit, which was threatened from nearly the first moment that the governor announced his plan, was filed July 18 in the California Supreme Court. The plaintiffs' petition for writ of mandate asks the court to find AB 1X 26 and AB 1X 27 unconstitutional on the grounds that they violate Prop. 22 and Prop. 1A. The petition refers to the options to pay or shut down as a "Hobson's Choice" that amounts to no choice at all.  The petition also asks the court to stay the implementation of the laws no later than Aug. 15 so that agencies can await the suit's verdict before mustering funds or commencing shutdown proceedings. Otherwise, agencies could dismantle themselves to such an extent that they would not be able to reconstitute themselves if the suit succeeds.  "We think we've shown the court that if the redevelopment agencies are dissolved as of October 1 in those jurisdictions…and then the bills are later invalidated that that would be a terrible situation," said Steven Mayer, an attorney at the firm Howard Rice, who is representing CRA and the League.  "Once the egg is broken it's very difficult to put it back together again. " Prop. 22 outlaws both the "direct and indirect" transfer of tax increment funds from redevelopment agencies to the state. Plaintiffs argue that the elimination of agencies constitutes an illegal indirect transfer.  "The governor and Legislature have blatantly ignored the voters and violated the State Constitution," said League executive director Chris McKenzie in a statement. "We must now go to the Supreme Court to uphold the voters' will and the Constitution by overturning this unconstitutional legislation."  The state's defense rests on the claim that even if TIF funds are protected, agencies themselves are not. Though the state's lawyers have yet to be named, they will likely argue that Prop. 22 does not obligate the state to support or allow redevelopment agencies.  "Prop. 22 did not address the broader, fundamental underlying issue of the existence of RDAs," said H.D. Palmer, deputy director for external affairs at the California Department of Finance.  Moreover, Palmer notes that AB 1X 27 requires payments not from redevelopment agencies but rather from their parent jurisdiction. Therefore, the state may argue that cities and counties are choosing to give up funds in exchange for the opportunity to sponsor redevelopment agencies. But TIF funding need not contribute to their voluntary payment.  "If redevelopment is to continue, then the parent agencies – whether it's a city or a county – makes a payment for schools," said Palmer. "It can come from revenue from base property tax, sales tax, or vehicle license fee – or any combination thereof. It does not specify or require that that money, should they choose to continue redevelopment, come from tax increment." The petition rejects both of these positions.  The petition notes that the amounts that cities and counties "nominally" would have to pay the state are "apportioned according to RDA revenues, and the money used to make them will inevitably come from the RDAs' tax increments." Furthermore, it contends that redevelopment agencies "fulfill…constitutional and statutory responsibilities" to invest in blighted areas, per the original 1954 legislation that established them.   Whether the court will agree to hear any of these arguments remains to be seen. The petition entreats the Supreme Court to hear the case as an original matter because the petitioners consider the matter "of statewide importance" and because a Superior Court would likely be unable to rule in a timely manner.  Mayer said that the $1.7 billion that is at stake gives petitioners "a reasonably good claim on the court's attention." If and when the court agrees to hear the case, Mayer said that the parties will be entering uncharted territory. He noted that because Prop. 22 is less than a year old, "obviously there are no court cases that interpret what that particular initiative means."   In the absence of prior rules, Mayer said that precedent calls for the court to construe the law according to its stated purpose. On that count, Mayer believes that his side has the advantage.  "The purpose of Prop. 22 is plainly stated to stop the state from interfering with local government revenues," said Mayer. "If the court construes the measure according to its purpose, hopefully we will prevail." Joining the CRA and League in the suit as petitioners are the cities of Union City and San Jose. The cities of Brentwood, Oakland, Modesto, West Sacramento, and Guadalupe also filed declarations in support of the suit. Mayer said that the plight of those cities illustrate reasons why the Legislature's scheme will be costly to cities and devastating to projects that agencies' are pursuing.  "They tell, each in its own way, a variety of stories about the way that the redevelopment bills will affect various cities," said Mayer. "I think they are compelling narratives."  "We're very proud to be part of the lawsuit," said Union City Redevelopment Agency manager Mark Evanoff. "We have a good story to tell. We can document how the local community, how the region, and how the state are going to be hurt by these disastrous new laws." Union City joined the suit in part because, according to Evanoff, it offers a particularly compelling tale of hardship. The agency has invested $56 million in projects around its BART station that are designed to support Senate Bill 375 by clustering development around a transit hub. Either dissolution or the remittance could cripple these projects.  "We're also doing what the region has called for, which is to focus 90 percent of new growth around our local transit hub," said Evanoff. "We're implementing the goals of the State Legislature to reduce greenhouse gases by having housing and jobs around the transit hubs." CRA spokesperson Kathy Fairbanks said that the CRA does not have authoritative information on the number of the state's nearly 400 active redevelopment agencies that might fold, but reports indicate that the vast majority are prepared to make the payments. But merely staying in business does not, according to many officials, mean that agencies will be able to conduct business as usual. Under the laws as passed, agencies would have to notify the Department of Finance of their intentions by Oct. 1; remittance payments would be due Jan. 1.  "Since the budget bills passed, many redevelopment agencies have notified us that they cannot afford the ransom payment and will cease to exist," said CRA executive director John Shirey in a statement. "And those agencies that are planning on making the payment tell us that it will greatly diminish their ability to pursue vital local projects." Barring a stay, Palmer said that the Department of Finance will be preparing to receive word from agencies about their intentions. He said that the final amounts of each jurisdiction's remittance payments will be calculated and made public by Aug. 1.  If the suit succeeds and the state receives neither remittances nor TIFs recovered from defunct agencies, then—regardless of the economic benefit of intact redevelopment agencies— Sacramento will have another budget headache on its hands.  "If revenues are not going to be part of the equation, then we're talking about extremely deep and difficult reductions above and beyond those that have already passed," said Palmer.  Contacts & Resources:  Text of CRA/League Petition <.pdf> Mark Evanoff, Redevelopment Manager, Union City Redevelopment Agency, 510. 675.5345 Kathy Fairbanks, California Redevelopment Association, 916.448.8760 Steven L. Mayer, Director, Howard Rice Nemerovski Canady Falk & Rabkin PC, 415.434.160 H.D. Palmer, Deputy Director for External Affairs, California Dept. of Finance, 916.445.3878

How much can one park do? That is the implicit question that environmental advocacy group Santa Monica Baykeeper posed regarding a combination passive recreation area and storm water retention facility planned in the City of Malibu. Sited near the iconic Surfrider Beach, the 15-acre Legacy Park would include a detention basin designed to capture three days' worth of storm water before diverting it to a treatment plant. Despite the city's hope that Legacy Park would be "the centerpiece of (its) commitment to water quality and the environment," Baykeeper has said that the park will not do enough to keep bacteria and other effluent out of the notoriously polluted area and filed suit under the California Environmental Quality Act.  In a decision handed down in April, the Second District Court of Appeal disagreed.  Baykeeper initially challenged the project alleging the EIR failed to analyze 1) construction-related project impacts; 2) the impact of using treated effluent from the adjacent Malibu Lumberyard; and 3) the cumulative groundwater impacts. In 2009 Baykeeper had filed suit to halt construction of the park, but in December 2009 a Los Angeles County Superior Court found in favor of the city, and then, in July 2010, a three-judge panel denied Baykeeper's request to halt the project while it filed its appeal. At that point, the park's construction was well underway; the park was, in fact, completed in October 2010, and yet Baykeeper forged ahead with its suit.  On appeal, the city argued the case was moot because the project construction was completed during the pendency of the appeal. The Court of Appeal found that the case was in fact moot as to the first issue of construction-related impacts. But it disagreed on the second and third issues. The appellate court upheld the trial court's denial of the writ with respect to the second and third issues, finding that Baykeeper failed to demonstrate the city had abused its discretion by approving the project. Legacy Park Project and Administrative Process Legacy Park was designed to reduce pollution impacts and improve water quality in Malibu Creek, Malibu Lagoon, and Surfrider Beach, all impaired water bodies under the Clean Water Act.  The project, as originally proposed, included: 1) stormwater detention and treatment; 2) habitat restoration; 3) a public park and 4) wastewater treatment. The purpose of the project was to provide an integrated plan for the city's Civic Center area that would protect the water quality at nearby beaches and lagoons from nitrogen runoff and pathogenic degradation and provide opportunities for restoration of native/sensitive habitats and public recreation. The project site is located at the terminus of the Malibu Creek watershed where Malibu Creek drains into Malibu Lagoon. A draft EIR for the project was prepared and circulated. After the DEIR was circulated, the city eliminated the wastewater treatment portion of the project because draft studies demonstrated the percolation capacity of the project site was insufficient. Insisting that the treatment plant be salvaged, Baykeeper appealed the project, but was rebuffed by the City Council. Baykeeper thereafter sought a petition for writ of mandate. Construction-Related Project Impacts Baykeeper argued the EIR's analysis of construction impacts on hydrology and water quality from erosion, sedimentation, and potential release of hazardous materials was deficient because it failed to determine the level of significance. The city argued that the issue was moot because by then construction had already been completed. The appellate court agreed, distinguishing the case from Woodward Park Homeowners Association v. Garreks, Inc. (2000) 77 Cal.App.4th 880 (see CP&DR Legal Digest March 2000 ) where the court ordered the preparation of an EIR for a car wash, even though the construction of the car wash was completed during the pendency of the action.  The Woodward court based its decision on the fact that the ruling could still have a practical impact: for example, the project could be modified, torn down, or eliminated. (Id. at p. 888.) The Baykeeper court noted that in Woodward , the petitioners had attempted to avoid CEQA review all together, whereas the EIR at issue in Baykeeper included extensive mitigation measures to address construction phase impacts. The court went on to explain that Baykeeper failed to maintain the status quo by seeking an injunction or stay, citing to Wilson & Wilson v. City Council of Redwood City (2011) 191 Cal.App.4th 1559, where the court blamed plaintiffs for the claims being moot because plaintiff had failed to seek a stay or other preliminary relief pending the outcome of the case. Lumber Yard Wastewater The Legacy Park project proposes to use the treated wastewater produced by the separate Lumber Yard Project, in combination with treated stormwater, to irrigate Legacy Park. For two months out of the year, excess effluent from the Lumber Yard will be percolated to groundwater. The draft EIR initially proposed that treated stormwater would be reused to the extent possible for irrigation and or dispersal via underground perforated piping. The draft therefore identified groundwater mounding hazards because the depth of the groundwater within the project area was shallow (mounding is the disruption of the groundwater flow caused by shallow re-injection or other surface recharge method). The draft EIR concluded the impact was significant, but after the mitigation calling for a hydrologic assessment, it would be less than significant. The subsurface dispersal was eliminated from the final EIR, as was the discussion of the hydrologic assessment. The EIR instead states that there will be no seepage into groundwater. Baykeeper argued that neither the draft nor final EIR discussed the fact that the effluent from the Lumber Yard project would be discharged on the site and cause mounding, and that the EIR improperly relied on a future study to mitigate groundwater mounding. The city argued that the only impact on groundwater at the Legacy Park would be from the previously approved Lumber Yard, which was approved in 2007. Further, the project would virtually eliminate the existing subsurface discharge of treated wastewater from the Lumber Yard because it would use it for irrigation. The court found the EIR adequately addressed the use of the Lumber Yard treated wastewater because the dispersal was subject of prior environmental review that was not challenged and thus a challenge is time-barred. The court found the EIR discussed the scientific studies conducted for the Lumber Yard project and, based on those studies, concluded the portion of treated wastewater not used for irrigation is within the percolation capacity of the site. Importantly, the court noted that Baykeeper does not cite scientific evidence in the administrative record to contradict the studies. Finally, the record supported the conclusion that no treated stormwater collected pursuant to the project would be discharged onto the Legacy cite. The EIR establishes that any groundwater mounding which occurs on the Legacy Park site will result from treated wastewater from the separate Lumber Yard project, not from the Legacy Park project itself. Cumulative Groundwater Impacts Baykeeper claims that the chapter on cumulative impacts failed to analyze the Lumber Yard. The city responded that the Legacy Park does not discharge anything into the groundwater, and therefore makes no contribution to cumulative groundwater impact. The court agreed with the city.  Writing for the court, Presiding Justice Norman L. Epstein wrote, "the net effect of the Legacy Park project will be to improve, rather than harm the environment."  Conclusion This case is one of a number of cases in recent years emphasizing Petitioner's duty to point to evidence contradicting the substantial evidence put forth by agencies, a trend giving some hope to developers and public agencies defending their CEQA decisions. (See also Tracy First v. City of Tracy (2009) 177 Cal.App.4th 912; California Native Plan Society v. City of Rancho Cordova (2009) 172 Cal.App.4th 603.) The Case:   Santa Monica Baykeeper v. City of Malibu (2011) 193 Cal.App.4th 1538. The Attorneys: For Santa Monica Baykeeper, Law Office of Rose M. Zoia and Rose M. Zoia  For the City of Malibu, Jenkins & Hogin, Christi Hogin and Gregg Kovacevich  Legacy Park Official Website

To its minimal credit, Borders Books & Music always had a a few shelves where the works of Jacobs, Mumford, Kunstler, Whyte, Florida, and others resided.  But, judging by the financial and aesthetic bankruptcies of, respectively, Borders and many American cities, it seems that copies of Life and Death (or anything else) weren't exactly flying out the door. If the public's understanding of urban economies even began to rival its fascination for gossip, self-help, and vampires, Borders never would have arisen in the first place. And its creditors wouldn't have had to put a stake through its heart .   I, for one, am glad to see it go.  On the one hand, America inches ever more towards illiteracy. Borders stores, while far from cozy, were pleasant and reasonably stimulating, relative to, say, big boxes and supermax prisons. For countless thousands of bibliophiles and starving students who found their first jobs there, Borders sure beat McDonald's. I should know. One of my first jobs was at Barnes & Noble (same difference). What I found working my (short) stint at B&N -- and I'm sure that Borders was much the same -- is that the mega bookstores treat books like any other commodity. Borders stores are sterile, corporate places where art, ideas, and information rot on the shelf. As I once noted in a Planetizen  book review of Stacy Mitchell's Big Box Swindle, the big bookstores share far more in common with Walmart and Best Buy than they do with the independent stores that populate Main Street. Or that used to.  Along with the other mega-retailers who benefited from perverse incentives in planning, zoning, and tax laws, Borders assisted in the gutting of American retail streets and the decimation of a proud entrepreneurial and intellectual tradition. In my hometown, I have already shed enough tears for Dutton's, Wilshire Books, and others. I, unlike Borders'  fans , am all tapped out.  But I'm hopeful about what could arise after the demise of Big Book.   The U.S. government bailed out the auto and finance industries because, so the argument goes, the economy depended on them. But that's only half the reason. The other half is that those industries have incredibly high barriers to entry. If you want cars and banks, you have to stick with the ones you have. You can't design and build cars or a banking system overnight.  You can, however, set up a bookstore in pretty short order. (In downtown L.A. one opened up from nothing a few weeks ago.)  I want to believe, as Jacobs' famous title implies, that the pendulum can swing back. In fact, the conditions could not be better for a revival of independent retail.  Borders, with 399 remaining stores on death row, collapsed because it had too few customers to support hundreds of enormous stores. But that doesn't mean that there aren't enough customers to support smaller stores in equal, or even greater, numbers.  For a little while, in cities where Borders already drove out all the independents, those customers will be out of luck. But then they should start raising hell. Perhaps a few of them will even found stores of their own. The next wave of startup bookstores will face competition from neither Borders nor other independents. The same recession that has depressed consumer spending has also depressed commercial rental rates. Vacant storefonts in Main Streets and in strip malls alike are there for the asking. You could probably buy a truckload of gently used books for what it costs to air condition a single Borders for a month. These new stores will, I suspect, instantly gain the loyalty -- and money -- of legions of customers who formerly thought that Borders was the ne plus ultra of retail. They will quickly learn the error of their ways. They will also make cities better. People on the extremes, who are both cynical of and rapturous about the free market, forget that some forms of commerce have intrinsic social benefits. Payday advance places and Hot Topic, for example, probably do not. But bookstores do. They are lively places, ideally with something for everyone. They bring people together and give them something to talk about. They foster the exchange of ideas that make cities great, and wealthy, in the first place. Cities with half a brain will throw out the tiresome manual that says that economic development depends on factories and infrastructure. They should, instead, seize this moment and promote entrepreneurship.  A bookstore-centric economic development plan probably makes little sense. But just as cities have lured big boxes for all the wrong reasons, they can probably figure out ways to make their storefronts and urban neighborhoods more inviting to entrepreneurs.  Most antiques don't get a second chance. Sure, some folks still ride horses, and fewer still take the hotrod out on Saturday night. The market for ironic vintage fashion is bigger than ever. But the demise of Borders does not mean that books have become antiques. They have survived for 600 years. As a human innovation, they are bested only by cities themselves. When something has been around that long, it doesn't easily turn into an anachronism. It is, in fact, an institution. The bookstore is dead. Long live the bookstore.  --Josh Stephens This piece also appears on Josh Stephens' blog on Planetizen's Interchange.

The Governor's Office of Planning and Research occupies an unusual place in California planning. Even though planning is an intensely local function, part of OPR's mission is to convey Sacramento's planning agenda to the local level. At times when that agenda has been ill-defined, OPR has nearly withered. But now that Gov. Jerry Brown has articulated support for Senate Bill 375 and for a host of smart growth principals, OPR may regain prominence. This task falls to attorney Ken Alex. Alex, who served under Brown in the attorney general's office, is Brown's senior policy advisor and director of the Office of Planning and Research, as well as chair of the Strategic Growth Council. In the attorney general's office, Alex specialized in environmental cases, and before that he led numerous settlement negotiations against power producers that collectively resulted in over $5 billion in settlements. As OPR director, however, Alex will see no such windfall. With a small staff and constrained budget, Alex spoke with CP&DR about his goals as OPR director and the future of California planning under the Brown administration. What are your and Governor Brown's goals for OPR? Some of the highest priorities for the governor are to promote the conversion to renewable energy and to think about it in local terms. One way to think about that is distributed generation. We are considering how to site not just rooftop solar, but also solar facilities that are more modest in size than some of the large-scale projects out in the desert. You might think about a 20 megawatt system that can go in fairly small areas. Ground-mounted tends to be cheaper than roof-mounted; they're easier to install and easier to take care of. And there are a lot of possibilities for where they could be sited: on utility right of ways, on freeway right of ways, and along the California Aqueduct. OPR is trying to help local jurisdictions figure out where some locations might be and then to think about what sort of barriers might exist for those projects: How do we streamline permitting so that we are sensitive to environmental issues but don't slow down the project to the point of making it nearly impossible? As former governor and mayor of Oakland, infill development is something that Governor Brown has been interested in for decades. So we're thinking about what strategies can promote infill development and do it in a way that's good for urban areas and brings people back to downtown areas in ways that we've seen in places like Oakland. Then one of the things that OPR has some statutory obligation to do, but hasn't spent a lot of time doing, is looking at the state of the environment every four years or so. I'd like to do that in ways that think about different measures of the environment that may not be traditional, such as air quality and water quality. Those are important. But how is public health? How are we doing on crime? How are we doing on other measures of the broader environment? What is California going to look like as we look towards 50 million people in the state? There's a lot of things that go into evaluating the state of the environment. What role does the Strategic Growth Council play in OPR's work? Right now the SGC is focused, in significant part, on doing its various grants. There are three rounds of grants: one set for urban greening and another set for planning and, in particular, for sustainable communities. The Strategic Growth Council has a very small staff. It actually has one , and she just hired a second staff member, and we're trying to get her a third staff person. But they really have very minimal capacity to do much beyond the grant process when the grants are in action. So the first priority is to receive the grant request applications and make decisions about them. What role can OPR play in implementing Senate Bill 375? Then SB 375 requires metropolitan planning organizations to evaluate and plan in a regional way, particularly for transit oriented development. We're trying to help the MPOs with some of that process on the planning side. More importantly, for me, is the question of how we get the local jurisdictions—which are not obligated to follow those plans—interested in meeting up with those plans and working in a regional way, which I think will help how we grow in California. One of the challenges that the metropolitan planning organizations have is to do modeling to evaluate what different strategies and scenarios mean and what are the impacts if they develop in certain ways as opposed to developing in other ways. We can help with the modeling. We can help with different scenario plans. We are trying to get the different MPOs to talk to each other, to coordinate, and to use the extraordinary amount of work that's been done in this area on transportation planning, on modeling, on design work on transportation-oriented development. SGC awards some highly coveted grants for local planning. What can cities expect from those grant programs? The criteria were put out to bid pretty much when I came into being chair of the SGC. I think the criteria haven't changed much in the past year. Obviously on the Urban Greening Grants, they're supposed to be primarily urban, so they're areas of high density, and there are various possibilities for how communities can go about, not just planting trees, but also creating places that are going to be relevant to downtown areas and to communities that have very high densities. SGC, as I noted, has a limited staff. But the grants themselves are actually looked after by the Resources Agency and by the Department of Conservation. Looking after those grants and making sure that the money is used properly, appropriately, and effectively is quite relevant. We're going to be doing some auditing and ensuring that the money is being used properly. Oversight is always an important issue, but even more so given the current economic times. How does the potential demise of redevelopment affect OPR's work? That's a fair question, and I don't really have a good answer at the moment. We don't even know which bills are going to the governor's desk, and which he may or may not sign. And when the smoke clears, where are we going? I would expect that there will be something to replace the current system but what that's going to be, I don't know. It has a lot of potential impacts for everything that OPR is doing. Like you and your readers, I am very curious to see what happens next. Are these incredibly trying times to be in your position right now? At the outset it's very exciting. We have a half-dozen new staff people who are excited to be there and have many, many ideas. We have almost no budget. But that's OK. We're interested in trying new ideas. What is difficult is that local governments in their planning departments have been decimated, so how do we help them without many resources ourselves? Some governors have embraced OPR, as Jerry Brown did in his first stint, others have not. How does Gov. Brown approach OPR this time? He was a big fan of OPR the first time around when he was governor. He understands that it has great potential to do good things. He is supportive of the idea of land use planning. He knows very intimately the issues that local jurisdictions face. I feel like we have a very supportive governor for what OPR is about, but the challenges we've identified are small staff and small budget. He has also made it clear that his government is going to run under a very slim budget and we have to live with that. That's life and we'll deal with it. How has your time in the attorney general's office influenced your approach to OPR's work? It's an interesting change from going from being an attorney and thinking first about litigation and how you use legal tools to being in a policy position. I think having some sense of how the laws are used, and sometimes misused, is a huge advantage. In many conversations, I have a sense of the legal issues, and as I learn some more of the policy questions I can bring some of that knowledge to bear. It's very interesting to approach these problems and start thinking about, "OK, as a lawyer you might use the law in a particular set of ways." And now we have to think about what are the problems created by how the law is used? And are there ways to reform or modify or give some guidance to make things easier and better.  I actually am enjoying that very much. You have a unique perspective on CEQA having worked on some landmark CEQA cases in the Attorney General's office. How do you think the relationship between CEQA and greenhouse gas emissions is going to evolve? What we found at the AG's office is that it was a new area some years ago. And it really needed to develop. The AG's office was very much a part of that development. Sometimes the development occurs through litigation and negotiation. But OPR has some very interesting tools, like technical advisories and guidelines and information letters, and I'm interested in seeing if we can use some of those tools as well. It's a positive development, and I think both tools are relevant. And I think working with local jurisdictions to figure out the challenges they have and to use OPR in a way that there's no threat of litigation--because we're not going to sue anybody--has some advantages. And I think sometimes the AG's approach has some advantages. Hopefully, there will be some ways to make progress on all fronts and come to the point where some of the very difficult questions raised by GHG emissions are less contentious and more sophisticated. How do you feel about the prospect of reforming CEQA? I think that CEQA has been perceived as a hindrance in certain instances. Whether that is objectively true in some ways doesn't matter, because perception is on some level, reality. I think it's fair and appropriate to evaluate what kind of changes may make sense. Is it just CEQA? I think it's fair to say that there are a lot of reasons why infill development is difficult. Some of them are straight economics. There are legal impediments. There are actions that can be taken under CEQA that can make development more difficult. So, fine, that's where we are, and I think that it's fair and appropriate to evaluate CEQA and see if it's time to make some changes. I know that the governor is interested in doing a very serious process to evaluate that. And at OPR we are working on possibilities of thinking about infill CEQA streamlining. We're evaluating whether some sort of best practices approach might make some sense where projects that meet a set of criteria would then have a very streamlined environmental review. That's an area where I think there's a fair amount of promise to make some possible changes. So we're convening some discussions on that topic with a lot of interested folks from a lot of different perspectives: environmental, builders, chambers of commerce, etc. I'm hoping that we can make some proposals in the not-too-distant future. What's your approach to the age-old challenge of coordinating different governmental units in California? The very first thing that we are doing is to get a sense of what the various interfaces between government agencies and local governments are on urban issues. It's not always obvious. There's quite a few of them. What Gov. Brown has emphasized with his cabinet secretaries….sometimes the agency jurisdictions are relevant, and they certainly are for budget purposes, but, in his view, it's one government, and we need to work together. I think OPR is part of making that happen. I want to find where the interfaces are and I want to get these entities to talk together and coordinate and figure out what works for local jurisdictions. We're doing that already. We're particularly focusing on renewable energy. We have programs at the Energy Commission, Air Resources Board and Public Utilities Commission, and we are meeting with these various departments and agencies trying to figure out what resources are available. How do you encourage cities to take health into consideration, on top of all the other factors that go into land use planning? I think that's a fair observation: cities have a lot of things to deal with. But I think for everybody at the state level and the local level, health issues are central. At the state level, we're working on something called Health in All Policies through the Strategic Growth Council, which is an attempt to integrate health into all sorts of decisions at the state government level: infrastructure spending and regulatory issues. What policies affect health and how do we ensure that decisions that are made that do affect health do take into considerations those impacts. The Health in All Policies work group has just identified 11 such impacts and are now working on a program to integrate those 11 identified issues into state policy. When we're done with that, we're going to integrate some of that into general plan guidelines for local governments. It'll be on a voluntary basis. But we want to try to help those jurisdictions that are interested in integrating heath into their planning decisions. We're going to introduce some informational processes to try to get some buy-in at local levels. For jurisdictions that may not have the capacity to have thought about this in an extensive way, they might be able to use some of the material, and say, ‘here's something off the shelf that we can do that might make quite a bit of difference.' For others, some of the jurisdictions are very sophisticated and it will be a reinforcement. As usual in California, there are all different sizes and shapes and we're trying to help as best we can. Photo of Ken ;Alex speakingat a UCLA / Berkeley Law forum May ;23 in Sacramento courtesy of the UCLA School of Law. Photo by Tia Gemmell.

OK, nothing surrounding redevelopment is much "fun" these days. But let's try to lighten the mood. In case you're wondering what exactly could get eliminated, the Senate Committee on Governance & Finance has compiled a list of the most salient facts from a recently released draft annual report, for FY 2009-10, compiled by the Office of the State Controller. This report was based on data reported by the agencies themselves, so some of the facts probably should be taken with a grain of salt. (For instance, if anyone knows exactly how to measure "jobs created," I want to hear about it.) There are 425 community redevelopment agencies, but only 399 are active Every city with a population over 250,000 has a redevelopment agency 94% of the 174 cities with populations over 50,000 have redevelopment agencies 81% of the 480 cities have redevelopment agencies 31 of the 58 counties have redevelopment agencies There are 750 redevelopment project areas 65 redevelopment project areas cover 50 acres or less 34 redevelopment project areas cover more than 6,000 acres Frozen property values were $164 billion; incremental values were $544 billion New construction fell to 12.5 million square feet, the lowest level since 1995-96 New construction of public buildings boomed from 222,000 to 1.4 million square feet Rehabilitated construction was down in every category except industrial buildings Redevelopment agencies created 36,000 jobs, more than double than in 2008-09 Agencies' total revenues & other funding fell to $8 billion, down from $8.3 billion Property tax increment revenues were $5.4 billion, 5% less; first drop since 1995-96 Pass-through payments were $1.2 billion, about the same as in 2008-09 Pass-throughs & other aid to K-14 schools was $315 million, down from $328 million Agencies spent $943 million in Low & Moderate Income Housing Funds Of that amount, 20.7% went for administrative, professional, planning, & design costs Low & Moderate Income Housing Funds' total revenues were $712 million Of that amount, $552 million came from property tax increment revenues Agencies' equity fell by $1.4 billion to $16.5 billion Agencies had unmatured long-term debts of $29.8 billion Agencies issued $825 million in tax allocation bonds Agencies' unmatured tax allocation bonds totaled $19.1 billion Source:  Draft Community Redevelopment Agencies Annual Report, Fiscal Year 2009-10. John Chiang, State Controller.  Released to the Legislature on July 7, 2011. --Josh Stephens

If you haven't heard, we're expecting a little traffic here in west Los Angeles this weekend. Actually, we're expecting it all over the city. No, wait. All over the county.  Forget it. The entire state is going to be paralyzed. Now everybody freak out! I am writing, of course, about the two-day closure of Interstate 405 between the 101 and 10 freeways, otherwise known as "Carmageddon." This weekend, LA Metro turns off the busiest freeway in the country, like Niagara Falls running dry.  The stanching of the flow of 500,000 cars daily will be a grand experiment in transportation planning and public relations, and as far as I'm concerned, there's not a single credible hypothesis. I'd like to think that I have special insight into what's going to happen because I live a two-minute drive from Ground Zero--the Sunset exit of the 405, where the cascade of cars from the Valley splashes down into the pool of gridlock that is the Westside--but I don't have a clue about whether this will be a blessing or a curse.  It's quite likely the parallel routes to the 405 will be stuffed. I wouldn't drive Topanga, Coldwater, or Laurel canyons for all the oil in Saudi Arabia. The 101 and the 5 are likely to absorb traffic well beyond their carrying capacity.  But it's the broader network effects that are going to be most interesting. For instance, if drivers want to get to Century City but take the 101, does that mean that all the east-west streets between Hollywood and Century city are going to be clogged?  Will through-traffic -- from, say, Santa Clarita to LAX, or even San Francisco to San Diego -- have to make massive detours, thus backing up the entire statewide freeway system?  Or will most people just stay home and fire up the grill?  Carmageddon has elicited some hopeful proclamations from folks who say that it presents a great opportunity to stay home, hang out with local friends, smoke a few joints, and contemplate the lamentable role of the automobile in modern life. I'm all for it. But I'm not sure that people who have to work Saturday and Sunday feel the same way.  However fun or inconvenient it may be, all the speculation about Carmageddon weekend ignores important questions that policymakers may have missed in their original cost-benefit analyses. For sure, the improved freeway will be better than the old freeway. But you can't compare the new and the old. You also have to consider the costs that we have incurred in between.  If you haven't seen the construction site, you'd be amazed at what's already been going on for two years. This isn't Texas, where another lane just requires laying down another strip of asphalt. And it's not even the San Francisco Bay, where you can build a new bridge right next to the old one.  We're talking about demolishing houses. We're talking about cutting 200-foot-high chunks off hillsides and replacing them with retaining walls. They're tearing bridges down one half a time, so traffic can squeeze past until they rebuild them whole (that's what they're doing this weekend). On- and off-ramps have been jury-rigged. Lanes on surface streets have disappeared.  In short, Carmageddon may be arriving this weekend, but we've been on a highway to hell for as long as this project has been underway.  Everyone, save a few transportation planners, is familiar by now with the arguments about induced demand . Once the lanes are added, they could fill up almost instantly. But that's only half the problem with freeway construction.  The other half--which is never mentioned or measured, as far as I know--is the time and money lost to drivers while the freeway is being improved. Even if the 405 doesn't clog up instantly and does flow freely for a few years after the project is finished, I find it hard to believe that the time savings will compensate for all the time lost during its construction.  To whit, a 1.5-mile drive from my apartment to Westwood, via Wilshire Boulevard, that can take five minutes can now take over a half-hour. Walking is literally faster. Multiply that by the tens of thousands of other drivers who take that route daily. Then multiply it by the other chokepoints. We'd all need Buggatis and open roads for years in order to make up for what we're now enduring.  Then there's the pollution. One of the arguments in favor of carpool lanes is that commuters consolidate their vehicles and that they'll pollute less because they're flowing freely. But the cars stuck on Wilshire are now polluting more. Again, unless every car stuck in traffic on the new 405 runs on hydrogen and fairy dust, the construction alone will have caused a net increase in pollution.  In other words, by the time this thing has a chance to reduce pollution and traffic--if it ever does--it will already have generated plenty of pollution and traffic.  So who benefits from this feat of engineering? I know that a certain construction firm is reaping $1 billion in revenue. But I'll get something more sublime. On Saturday evening, perhaps near sundown, I get to stroll across the Sunset bridge, peer into the twilight, and see, for once, what an empty freeway looks like.  --Josh Stephens Updated 15 July 1pm.

A Saudi prince's Los Angeles family compound plan in Benedict Canyon has won an appellate court's order clearing the way for a grading permit across a large hillside area, even though the sponsors did not file a tract map. Writing for a unanimous three-judge panel of the Second District Court of Appeal, Justice Victoria Gerrard Chaney upheld the trial court's order, which found no tract map is required where the land in question will not be subdivided. The project called for construction of three houses, plus a pool, outbuildings and "accessory living quarters", on three contiguous hillside lots that together covered 85,000 square feet. The land use blog of the Jeffer Mangels law firm, whose attorneys represented project proponent Tower Lane Properties, said Tower Lane was "an entity established by Saudi Prince Abdulazziz ibn Abdulazziz al Saud, who is currently the Deputy Foreign Minister of Saudi Arabia." The opinion's procedural history said city planners first responded to the proposed project by citing a local code requirement that a tentative tract map must be in place with Planning Department approval before a grading permit may be issued for a hillside area of 60,000 square feet or more. Tower Lane sought a waiver of the requirement. When Planning called for an environmental impact assessment Tower Lane balked and filed a writ petition in court. Two neighbors joined the city in opposing the writ. The appellate court found the Los Angeles code section containing the grading requirement "by its plain language applies to subdivisions only." It said the code section's phrasing and context, including the very words, "tentative tract map", showed it was meant for subdivisions. The city had argued the tract map procedure was an appropriate means for the city to review whether the grading was appropriate for the site or should be limited by constraints such as planning restrictions or easements. The court responded, "It is not our place to decide whether the City should make these inquiries, only whether section 91.7006.8.2 mandates them. It does not. " It noted separate provisions in the Building Code did call for the inquiries the city had in mind, but did not provide for them to be made by the "advisory agency" mentioned in the tract map statute. The court further refused to defer to past department memoranda and decisions applying the statute, saying that in the examples put forward, either the decisions were made in the context of subdivisions or non-subdivision applicants for waivers were not put through environmental review as the appellants would have been. The Jeffer Mangels blog quoted one of the firm's attorneys, Benjamin M. Reznik, as saying his client "has been the target of allegedly unfair and at times vicious attacks by local residents and the media" and "feels completely vindicated by the court ruling." http://landuselaw.jmbm.com/2014/03/appellate-court-rules-in-favor-of-saudi-prince-in-benedict-canyon-case.html. The case is Tower Lane Properties v. City of Los Angeles, at http://www.courts.ca.gov/opinions/documents/B244092.PDF .

In a dispute between tenacious neighbors in Del Mar, the Fourth Appellate District upheld a variance for plans to tear down and rebuild a house at its existing distance from the street although it did not meet a local 20-foot front yard setback requirement. The court said property owner Jon Scurlock's right to seek a variance for his "complete remodel" was independent of the old building's existing nonconformity, and it found substantial evidence for local officials' decision that granting the variance would be fairest to the property owner while serving local planning goals. The old housefront, hence the proposed new one as well, stands "nine to 11 feet from the street" on a lot sloping steeply downward. The local Design Review Board found that replacing the house at the same distance from the street as before would best minimize "adverse impacts to steep slopes," land disturbance and the sizes of retaining walls. After an investigation including personal visits by all members, the Planning Commission agreed, adding that "strict application of the front yard setback deprives the property owner of privileges enjoyed by other properties in the vicinity." Neighbors' objections and legal action failed to win over the City Council -- again, after personal site visits by all members. The county Superior Court rejected the neighbors' writ petition. Likewise the appellate court. All sided with Scurlock. Deferring to the city's interpretation of its own code, the appellate court rejected arguments based on municipal statutes that governed property owners' rights to maintain but not increase nonconformities in existing structures. The court said the right to maintain a nonconformity and the right to apply for a variance are "two completely separate concepts" and it would be absurd and unfair to let a preexisting nonconformity on a property limit the owner's ability to apply for a variance. It said since Scurlock meant to do a "complete remodel" he had no rights to continue any nonconformities -- only the independent right to apply for a variance, which he did. The court found substantial evidence for the Planning Commission's approval of the variance, quoting with approval its extensive findings and rationales on the uniqueness of the building site and the fairness of the variance as a way to let Scurlock develop his property in parity with rights of other nearby property owners. Although it would be possible for the property owner to rebuild lower on the slope in compliance with the setback rule, the court said that in light of the greater costs in money, environmental disruption, ugliness and awkwardness, it did not follow that he should be made to do so. On a municipal code section that called for considering alternate designs, the court said "the inquiry is whether an alternate design could have avoided the disadvantages that stem from complying with the setback requirement. The inquiry is not... whether Scurlock could have designed a house that complied with the setback requirement regardless of the disadvantages." Decided in February but ordered published as of March 14, the case is Eskeland v City of Del Mar , at http://www.courts.ca.gov/opinions/documents/D061370.PDF.

Lawyers for organizations may feel both shudders and relief on reading a recent appellate decision protecting attorney-client privilege for the members of a La Jolla homeowners' association. Shudders, that a local court's discovery order would have required individual homeowners to recount group strategy meetings held by their HOA's lawyers. Relief, that the Fourth District Court of Appeal has blocked the order. The dispute arises from two construction defect lawsuits against developers and builders of a 140-unit common interest development. The homeowners' association has sued over alleged damage to common areas and about 30 individual homeowners are suing separately over alleged damage inside their individual units. The discovery dispute concerned whether the HOA's lawyers waived confidentiality when they held meetings for homeowners "to apprise them of the status and goals of the litigation," and in one case to get their vote approving the action. Defendants alleged the protective circle of attorney-client privilege was broken by the presence of individual homeowners who were not the lawyers' clients. A homeowners' association is a different entity from its individual members, not all of these homeowners had chosen to join the other lawsuit alleging damage inside of homes, and in any case that suit was brought by different lawyers. The appellate court held confidentiality rights were not waived at the meetings based on a review of Cal. Evidence Code §§ 912 and 952 and prior evidentiary rulings specific to homeowners' associations, including their duties to keep members informed. It noted attorney-client privilege can protect third parties to whom disclosure is "reasonably necessary for... the accomplishment of the purpose" of the consultation. While participants in the two lawsuits might have diverging interests in obtaining legal advice, the court found "the Association's attorney was attempting to communicate in the subject meetings with other stakeholders, the individual homeowners, in a manner that would advance their shared interests in securing advice on similar legal and factual issues." The case is Seahaus La Jolla Owners Association v. Superior Court , at http://www.courts.ca.gov/opinions/documents/D064567.PDF.

Ruling for the Coastal Commission against property owners represented by the Pacific Legal Foundation, California's Second Appellate District cited the doctrine of collateral estoppel to find that an easement condition on a coastal development permit, once final, cannot be contested in a second permit application. In Bowman v. California Coastal Commission , the court wrote that property owner Walton Emmick obtained construction permits and did some work to fix up a dilapidated house on coastal property, but died before San Luis Obispo County granted his application for a coastal development permit (CDP). After his death, the county granted the CDP to his successors, the trustees of a family trust. As a condition for the permit, the county imposed what the appellate court termed a "quasi-judicial determination that the lateral easement condition was valid for the proposed development because development would lead to an increased use of the property." The trustees let the decision become final without appealing it directly. The court said the trustees later applied for a second CDP, in part to replace the property's barn, but also for much of the work already authorized under the first CDP -- and, additionally, asking the county to drop the easement condition. The county did approve the second CDP application, and did agree to remove the easement, but "the Sierra Club, the Surfrider Foundation and two coastal commissioners appealed" to the Coastal Commission, which found the easement condition from the first permit to be binding. Both the trial court and the Second District sided with the Coastal Commission. To a claim by the trustees that they could "walk away" from the initial CDP and seek a new one, the court retorted that they "cannot walk away from collateral estoppel." It held that basic principles on the finality of judgments prevented reopening a settled determination with a new permit application. The court found appellants showed "nothing that would compel the Commission to modify the access easement condition." Contrary to appellants' claim, it said the Coastal Commission did not try to expand the easement beyond what the original CDP required. The court found the appellants' contention that they never accepted the easement condition did not prevent it from taking effect. It found that since the construction work was completed under the initial CDP, appellants accepted the benefits of the permit, hence were bound by its condition. The court said this was so even though the work had been completed under the decedent's local construction permits while his application for the first CDP was still pending. The court said the work done then was only legalized by later issuance of the CDP that carried the condition. In a seeming inconsistency, the opinion's initial procedural history says Emmick obeyed an order to stop construction but the concluding paragraphs say he "completed the improvements". In a December 2013 blog entry, an attorney for the trustees, Paul Beard II of the Pacific Legal Foundation, gave a somewhat different account. He wrote that the work Emmick did on the property was under local construction permits for repair work that is "categorically exempt" from CDP requirements, and that Emmick completed it while his CDP application for larger-scale work was still pending. Beard wrote that "no further work on the property has been done since the repairs were completed." He contended that "the family did not sign or in any way exercise" the first CDP. His account of the second CDP application says the Planning Department first "eliminated one-half of the public-access easement" and then, per the family's appeal, the Supervisors agreed to drop the easement entirely -- after which the environmentalists' appeal to the Coastal Commission followed. See http://bit.ly/1gl5D6k. A recent posting by the organization (via http://bit.ly/1kYZYlJ) says the decision is 'based on an utterly confused understanding of the facts, as alleged by the Commission.' The case is at http://www.courts.ca.gov/opinions/archive/B243015.PDF .