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A lawsuit challenging the City of Stockton's decision to privatize its water, wastewater and storm drain systems is headed back to trial court, where a judge will reconsider whether the city's contract with a private company is exempt from environmental review. Nearly two years ago, San Joaquin County Superior Court Judge Bob McNatt ruled that the contract was not categorically exempt from the California Environmental Quality Act (CEQA). The decision was a victory for groups who opposed a privatization agreement. However, in March 2004, Judge McNatt vacated that decision because the city had recently pointed to a Government Code section that might provide an exemption. The opponents appealed McNatt's order. A three-judge panel of the Third District Court of Appeal, however, determined that McNatt's order was not appealable. The Third District ruling placed the case back in front of McNatt. In February 2003, the Stockton City Council voted 4-3 to approve a 20-year contract worth $600 million with OMI, Inc., of Colorado and Thames Water, a British subsidiary of the German company RWE. City officials and OMI-Thames contended that the contract would save the city's utility customers $100 million over 20 years. City officials further said the agreement provided the only way for the city to afford to improve the treatment of wastewater. The city's decision came despite vociferous opposition from people who were skeptical of handing over essential infrastructure to a private company. The decision also came only two weeks before Stockton voters approved an initiative requiring voters to decide on any utility privatization worth more than $5 million. Three groups - Concerned Citizens Coalition of Stockton, the League of Women Voters of San Joaquin County, and the Sierra Club - sued the city. They argued that the city should have completed an environmental review before signing the contract, which city officials said was categorically exempt from review. Judge McNatt initially agreed with the privatization opponents. But then the city and OMI-Thames pointed the judge to Government Code § 5956.6, subdivision (b)(1). It states that an agreement between a local government and a private entity for the design, construction, reconstruction or lease of certain fee-producing infrastructure does not require CEQA compliance. Rather, CEQA applies to project development. McNatt then decided that his original ruling “may have been premised on an error of law” and he granted the city and OMI-Thames a new trial. Opponents appealed and even gained the support of the state attorney general's office. But the Third District determined that, despite the wording of McNatt's order, the judge had not granted a new trial. Instead, the court ruled that McNatt had granted “alternative relief” under Code of Civil Procedure § 662. “ t is apparent the trial court did not intend to 'grant a new trial as to any issue in the sense of granting a “reexamination of an issue of fact” as though no trail had been previously had,'” Justice Ronald Robie wrote for the court, citing , (1937) 21 Cal.App.2d, 138, 150. “Instead, what the trial court intended to do was reopen the case to determine the effect on the case, if any, of Government Code § 5956.6(b)(1).” Reopening the case in this fashion is not subject to appeal, the court held. McNatt “merely determined that the statute apply,” Robie wrote. Once McNatt decides whether the statue does apply, either party may then appeal that decision, the court ruled. The Case: , No. C046524, 05 C.D.O.S. 2956, 2005 DJDAR 3947. Filed April 4, 2005. The Lawyers: For Concerned Citizens: Brian Johnson, Shute, Mihaly & Weinberger, (415) 552-7272. For the city: John Briscoe, Stoel Rives, (415) 617-8900. For OMI-Thames Water Stockton: James Meeder, Allen, Matkins, Leck, Gamble & Mallory, (415) 837-1515.

The City of Berkeley and the University of California (UC) are at odds over a 15-year land use plan adopted earlier this year. The city contends that the UC plan burdens city-funded services and does not protect city desires regarding off-campus development. University officials defend the plan, saying that the school benefits the community in many ways and that the plan guarantees UC consultation with the city for any off-campus project. In February, the city filed a lawsuit over the Long Range Development Plan. The two sides are negotiating. In the meantime, UC is moving ahead with plan implementation - and the city is taking steps to increase revenue it gets from the university. “The City of Berkeley does not oppose all new development by the university,” Mayor Tom Bates said earlier this year. “However, this community must have a meaningful say in how, when and where new growth occurs - particularly development that takes places off the campus. And we must be compensated fairly for the city services we provide.” Bates's comments prompted this response from UC: “The university is sympathetic to the financial challenges facing the city and, as a member of this community, the campus wants to enhance the city's neighborhoods. That is why the campus offered to increase significantly its direct annual payments to the city, earmarking funds for city services and neighborhood improvements. Unfortunately, city officials rejected our offer.” The UC Board of Regents adopted the 2020 Long Range Development Plan in January, after a two-year planning process. The plan proposes to accommodate up to 4,000 additional students and 2,800 additional workers. The plan calls for: o 2.2 million square feet of space for academic and support programs, an increase of 18%. About half of this space would be built off-campus. o 2,600 new beds of student housing, a 32% increase. The housing would be built in numerous areas within walking distance or within a 20-minute transit ride of campus. o 2,300 additional parking spaces, a 30% increase. Five hundreds of these spaces would be deferred until after 2020 if a bus rapid transit project along Telegraph Avenue gets under way by 2010. Since adoption of the plan, the university has started preliminary work on the Chang-Lin Tien Center for East Asian Studies, details of which UC rolled into the long-range plan. The university has also started construction on a replacement for Stanley Hall, which UC demolished last year. The new building will provide space for bioscience facilities. Preliminary work also is under way for a new information technology center. Later this year, UC hopes to begin construction of the first off-campus project since LRDP adoption - a child-care center. That project will test the LRDP's design principles for fitting university development into the community, said Kerry O'Banion, project manager for the long-range plan. The long-range plan is similar to a city's general plan, O'Banion explained. “It's a framework that gives us a set of principles and guidelines to work from,” he said. The details of, and environmental review for, specific projects will be handled as the university addresses individual projects in the future. The regents adopted the previous long-range plan for the Berkeley campus during the late 1980s. The new plan differs in several ways. “The main point is that it's much more explicitly tied to the academic plan,” O'Banion said of the 2020 plan. “The objectives in the long-range plan you can tie directly to the academic goals.” Additionally, the new plan contains a number of sustainable design features that attempt to reduce operating and maintenance costs; provides guidelines for where certain types of buildings should go; has design guidelines; and places a stronger emphasis on redevelopment. “It's a built-out environment. Every piece of land has a use of some kind on it,” O'Banion said. For new buildings and facilities, campus planners are eyeing places that are underused, obsolete or seismically questionable, he added. However, the fact that the city and campus are already intensely developed is a factor that underlies the city's concerns. The city's issues with the plan can be divided in three primary areas, said Cisco DeVries, the mayor's chief of staff. First, the city needs to have more meaningful input into what development occurs off-campus. Under state law, the university can build just about anything it wants. The LRDP is “vague” about what will get built off-campus, DeVries said. The second issue is parking. Adding 2,300 parking spaces will only further congest Berkeley's famously jammed streets, city officials contend. The third issue is money, specifically fees for municipal services that the city provides. City officials say the city provides $13.5 million worth of services to UC every year, a tab that will increase by $2 million annually under the LRDP. The city's lawsuit argues, “The university does not commit under the LRDP to pay for the impacts on city services used by the university or to lessen those impacts through effective mitigation.” “For example,” added DeVries, “we provide the entirety of the university's fire protection and ambulance services. We essentially provide a fire department for a community of 50,000 people at no charge.” University officials have indicated they are willing to talk about the issue, but the two sides appear to be getting only farther apart. In March, the City Council decided to pursue a 10% tax on UC parking fees. University officials contend such a levy would violate the state constitution's prohibition against taxing state agencies. In April, the City Council voted to more than triple the sewer service fees charged to UC, which are currently at $450,000 a year. UC officials responded that the city's fee methodology was flawed and that there is another year left on a 1990 agreement regarding sewer fees. There is one other money issue: Paying for new facilities. Housing and parking generate enough revenue to pay for themselves, according to O'Banion, but everything else relies on a combination of campus funds, state funds, and donations. The Legislative Analyst's Office has recommended not funding LRDP projects until UC justifies the need. The LRDP supposedly provides for 4,000 additional students, yet UC Berkeley has already added those students with existing facilities, according to the LAO. “Therefore, it is unclear why 2.2 million gross square feet of buildings would be needed to accommodate enrollment,” the LAO reported. University officials say the system's oldest campus needs continual updating and additions to maintain its place as one of the world's top research centers. Contacts: Kerry O'Banion, University of California, Berkeley, Facilities Services, (510) 643-3362. Cisco DeVries, Berkeley Mayor Tom Bates's office, (510) 981-7103. Long Range Development Plan: www.cp.berkeley.edu/LRDP_2020final.htm .

Santa Cruz County is not allowed to regulate the height of mobile homes because state law has pre-empted the possibility of a local ordinance, the Sixth District Court of Appeal has ruled. The Mobilehome Parks Act (MPA) governs the construction and installation of mobile homes in California and prohibits additional regulation by local governments, the court ruled. “ t is clear that the Legislature intended to limit local authority for zoning regulation to the specifically enumerated exceptions of a mobile home park may be located, vehicle parking and lot lines, not the structures within the parks,” Presiding Justice Conrad Rushing wrote for the unanimous three-judge panel. The litigation was spurred by the state Department of Housing and Community Development's issuance of a permit in 2001 to Kenneth Waterhouse, the owner and operator of Yacht Harbor Manor Mobilehome Park in unincorporated Santa Cruz. Waterhouse sought and received permission to install a two-story mobile home. Two months before HCD approved Waterhouse's application, the Santa Cruz County Board of Supervisors adopted an ordinance prohibiting mobile homes in mobile home parks from exceeding one story or 17 feet without county approval. After Waterhouse won approval from the state, the county sued him to block installation of the two-story home. A trial court judge ruled against the county, which appealed but lost again. The question for the Sixth District was whether the Mobilehome Parks Act (Health and Safety Code § 18300 .) pre-empted the county's ordinance. Cities and counties have general police powers to enact laws and regulations to protect the public, but that power is superceded when a state law “fully occupies” a field. The Sixth District found that the Mobilehome Parks Act fully occupied the field, but the county pointed to , 79 Cal.App.4th 1318 (see CP&DR Legal Digest, June 2000), in which the court ruled that the Mobilehome Parks Act did not prohibit the county from enforcing rent control regulations. The county also noted exceptions in the state law that allow the county to zone for mobile homes and mobile home parks, to regulate parking, signs and perimeter walls, and to create and adjust mobile home park lot lines. The court ruled, however, that neither nor the statutory exceptions addressed the construction of mobile homes. “does not support the county's position in this case,” Rushing wrote, and the exceptions do not provide “the county authority to regulate the structure of mobile home units within the parks.” Rushing continued, “ two-story mobile home, if it meets the construction standards, can be installed in a mobile home park, provided it meets the lot line requirements. The MPA provides no authority to localities to regulate whether or not a double-wide or triple-wide is installed in its parks. Similarly, there is no authority to regulate whether a two-story unit is installed.” The Case: , No. H024127, 05 C.D.O.S. 2813, 2005 DJDAR 3787. Filed March 30, 2005. Modified April 28, 2005 at 2005 DJDAR 4921. The Lawyers; For the county: Dwight Herr, county counsel's office, (831) 423-5800. For Waterhouse: David Spangenberg, Spangenberg & Ritson, (707) 473-4340. For the Department of Housing and Community Development: John Davidson, attorney general's office, (415) 356-6365.

Although I know little about Scottish history, I seriously doubt that the Scotsmen of the early 1400s who invented golf ever thought about the environmental impact their delightful new pastime would bring to the as-yet-undiscovered shores of California. Intent on whacking leather balls filled with feathers, those same 15th Century Scotsmen probably did not think that their seemingly innocent diversion from herding sheep would ever be the rationale behind something as weird as the Santaluz development in North San Diego County. The 3,800-acre Santaluz is innovative, to be sure, perhaps too much so. The very look of the site plan inspires queasiness, at least to my conservative eyes. In contrast to other site plans, which look like street maps or parks, the plan of Santaluz looks like the abdomen of a female frog, full of eggs. Swimming amid those frog eggs are creatures resembling long green nematodes. These nematodes, in fact, are the fairways of a golf course. For those who have lived in outer space for the past several decades, it may be necessary to explain that it is impossible, nay, , to build an upscale, suburban housing development without a golf course. (Enacted during the administration of the first President Bush, the law is known as the Universal Right of the Affluent Americans to Have Access to a Golf Course from Their Back Yards Act of 1989.) Santaluz offers a very-low-density estate housing scheme consisting of 850 homes and house lots, of which 300 are the circular kind. The other houses are conventional, home-builder "product." All of this, naturally, is tucked behind locked gates. The large lot sizes allow the houses to be separated from one another by distances of 100 to 200 feet, which is an important point of sale in a development that retails in the fantasy of making homeowners feel like landed gentry. The circular lots, which the developers describe as “curvilinear,” start at around $775,000 for six-tenths of an acre, and soar upward to $2.45 million for four acres. Those prices do not include the cost of the house. Much of the oddity of this site plan is the byproduct of the lofty environmental aims of Santaluz, which is being developed by a partnership of DMB Associates Inc. and Woodrow Taylor Homes. The things I called frog eggs are in fact circular home lots, which are a genuine innovation (unless you want to give credit to those mysterious crop circles that appeared in Great Britain a few years ago). Ingeniously, the circular home lot allows the home buyer the hitherto unheard-of opportunity of spinning the floor plan around on an imaginary turntable, until she has selected the very best view. It is as hard to argue with the marketing sense of this appealing idea as it is difficult to justify it architecturally. Traditionally, we design houses to respond to particular landscapes and solar orientations. We might add more shade on the south and west exposures to cut down on the summer heat, for instance, and provide windows in other places to capture prevailing breezes. In the anti-architectural logic of Santaluz, however, a pre-existing home design is spun on the roulette wheel of the homeowner's imagination, with little or no acknowledgement of the sun or any other natural forces that may invade the sun-drenched hills of the San Dieguito River basin. Seen from the air, the houses of Santaluz may remind viewers of a wall of clocks in a travel agent's office, where the hour hands point in all directions to indicate different time zones. The sight of a group of houses twirled around at different compass points may discomfit some hide-bound urban planners, who make a compulsion out of lining up buildings in the same direction, but so what? The point-it-where-you-like-it idea is a genuinely creative gambit on the part of the developer because it plays into the ancient Anglo-American fantasy of owning a country house. We may steer our house in a direction outside of the view of other people's houses. This makes us feel like gentleman farmers surveying the broad lands of our estates. In other words, Santaluz is suburbia pretending to be rural. You can almost hear the cows lowing - that is, if the Codes, Covenants and Restrictions of Santaluz allowed cows, which they don't. Maybe I am making too much out of the seeming eccentricities of Santaluz. Fairness dictates I disclose that this development won awards from the both the Building Industry Association and a Gold Nugget Award for “Best Land Plan” from the Pacific Coast Builders Conference. The project was even a finalist for an Urban Land Institute award of excellence. If the experts like Santaluz, who am I to naysay their judgment? As an attractive, money-making development, I think Santaluz is a sure-fire hit. As a model of urban or suburban organization, I think it is disorderly, but that is a matter of taste. As an environmental event, which is more important, I think Santaluz is indefensible. The development is one of many instances of high-priced, low-density housing subdivisions masquerading as environmental “sensitivity.” The developers may have been able to snow the local Board of Supervisors with talk of limited environmental damage, but I do not buy it. Even if the homes are of low density today, the existence of roads, electrical conduit and sewer mains ensures this neighborhood will soon be expanded with additions and guests houses and eventually subdivided. In other words, Santaluz is the opposite of good environmental stewardship. The proper way to protect fragile lands is to concentrate housing in a limited area, thus maximizing open space and minimizing natural habitat fragmentation. While golf courses are popping up in all kinds of sensitive settings, I think they are inappropriate in the extreme, because the green turf of golf courses is neither public open space nor habitat for birds and animals. But golf is the opiate of the middle classes, and developers and their lenders have learned to build links along with housing as a means to ensure pre-sales. What was good for 15th Century Scotland, however, may not be ideal for 21st Century California. But why concern yourself with a problem for the future? Right now, it's your turn to tee off while I tuck into my latest vodka tonic. God, it's beautiful here!

Developers suffered two losses during recent special elections. Voters in the fast-growing Riverside County city of Murrieta recalled the mayor and nearly threw out a second councilman. Meanwhile, the San Luis Obispo electorate rejected a 650,000-square-foot power center and the finance deal supporting the project. At the May 3 election in Murrieta, three pro-growth members of the City Council faced recall. Voters ousted Mayor Jack van Haaster from office by a 51-49 ratio. Councilman Kelly Seyarto narrowly survived the recall with 50.7% of the vote, while Councilman Doug McAllister easily staved off the recall by winning nearly 55% support. Citizens formed a group called Rescue Murrieta in the parking lot following a City Council meeting in June 2004, group spokesman Edward Faunce said. That night, the City Council approved a large day-care center proposed by van Haaster's daughter and rezoned land from large-lot residential to commercial to accommodate a proposed shopping across the street from a brand new shopping center. Those projects were on streets that were already gridlocked at certain times of the day, Faunce said. Rescue Murrieta targeted van Haaster, Seyarto and McAllister for recall because they often formed a 3-2 pro-growth bloc. Van Haaster received additional criticism for meeting privately with four Planning Commission members regarding his daughter's application for the 400-child day-care center. That project got cut in half, and van Haaster later apologized for intervening, but the political damage had apparently been done. "They didn't follow the general plan," Nancy Knight, a recall proponent and replacement candidate for McAllister's seat, said of the recall targets. "Multi-family housing is one of the big issues. They have really burdened our city with a lot of these high-density, multi-family housing projects." Development interests bankrolled the campaign to keep the embattled officials, pouring more than half a million dollars into the campaign. Two branches of the Building Industry Association, Lennar Homes, Barratt American and at least four other development interests wrote five-figure checks to support the incumbents during the city's most expensive election ever. Van Haaster was replaced by retired Air Force Colonel Rick Gibbs, who easily topped 20-year-old Casey Evans in balloting to replace the mayor. Rescue Murrieta endorsed Gibbs, but he is not a member of the organization. Still, the change on the City Council was apparent within minutes of Gibbs assuming office, when the council voted 4-1 to appoint Councilman Warnie Enochs as mayor. Frequently on the short end of 3-2 votes, Enochs has been on the council for 10 years but was never before selected mayor. During the same period, Van Haaster served six years as mayor and Seyarto, who voted against Enochs' appointment, two years. Murrieta has experienced nonstop growth since it incorporated in 1991. In May, the Department of Finance reported that Murrieta has grown 92% in the last five years to a population of 85,100. “The need to bring the infrastructure up to catch up with the rooftops is overwhelming,” said Rescue Murrieta's Faunce. “Our streets are not up to par. Our schools are overcrowded. It's almost an impossible job.” Infrastructure was also an issue in the April 26 San Luis Obispo special election, specifically how to pay for an overpass across Highway 101 to a proposed power center. Under a development agreement between the City of San Luis Obispo and developers of the Dalidio Ranch Marketplace, the developers would have fronted most of the funding for the overpass. They would have been repaid up to $22 million through a sales tax “rebate.” The city also would have contributed development impact fees to the overpass. Detractors said the development agreement was key in solidifying opposition to the project, which the City Council approved last year. In the referendum, voters rejected a general plan amendment (Measure A) 51.4% to 48.6%, and they defeated the rezoning (Measure B) 52.3% to 47.7%. The vote against the development agreement (Measure C) was a slightly more convincing 52.9% to 47.1%. “If this was just a bunch of liberal left, environmental activists, we couldn't have done it,” said Ben Romo, a campaign consultant for a group called Save San Luis Obispo. “The residents of San Luis Obispo recognized that this was a deal that was going to cost the city money. … We had a number of supporters who have never opposed a development in their lives.” An alliance of slow-growth advocates and downtown merchants emerged during the campaign. The groups, who have not always been friendly in the past, feared that that the power center would harm downtown, which is already facing a difficult seismic retrofit project. “Some people who often don't agree on things were agreeing on this,” said Jan Marx, a member of Save San Luis Obispo, land use attorney and former council member. “We want to be a town with a vigorous downtown and a greenbelt.” The referendum vote does not necessarily mean the project is dead. Because the city never completed annexation of the 131-acre site, property owner Ernie Dalidio and developer Bill Bird have filed an application with San Luis Obispo County. They pursued a project with the county previously but did not get far because the Board of Supervisors said the development belonged in the city limits. As approved by the city, Dalidio Ranch Marketplace would have had 650,000 square feet of retail space, including a Lowe's Home Improvement Center, Target, Whole Foods, Old Navy, and a hotel. There also would have been 60 housing units. Bird told San Luis Obispo of that the project proposed for the unincorporated area would be “similar.” Contacts: Ed Faunce, Rescue Murrieta, (951) 296-0288. Nancy Knight, Murrieta City Council candidate, (951) 677-2459. Jan Marx, Save San Luis Obispo, (805) 541-2716. Ben Romo, Save San Luis Obispo campaign consultant, (805) 570-5187. Dalidio Ranch Marketplace: www.dalidioranchmarketplace.com .

Legislation that would permit certain redevelopment agencies to extend the life of redevelopment project areas has stalled for the year. Four Assembly bills hit a roadblock in the Assembly Housing and Community Development Committee when Chairman Gene Mullin (D-South San Francisco) decided that a broader discussion of redevelopment time extensions was necessary. Also stalling in the Capitol was a bill that would permit the Port of Los Angeles to tap redevelopment tools. Meanwhile, a bill that would alter the definition of “blight” to allow tax-increment financing of transit-oriented developments remains alive but faces an uncertain future this year. Under the last major round of redevelopment reform (AB 1290 from 1993), redevelopment projects must expire by January 1, 2009, or after 40 years, whichever is later. In 2001, lawmakers approved SB 211, which permits 10-year project extensions within tight constraints (see , July 2001). However, only one redevelopment agency (Sacramento) has been able to take advantage of SB 211. It appears that SB 211's requirements are too strict, said California Redevelopment Association (CRA) Executive Director John Shirey. Some agencies are highly leveraged and cannot afford SB 211's mandate that an additional 10% of tax increment be spent on low- and moderate-income housing, he said. Some agencies are reluctant to accept the emphasis on low-, very low- and extremely low-income housing that is required by SB 211 and a follow-up measure, SB 701 from 2002. Some agencies cannot pass SB 211's stringent blight test, even though projects are incomplete, Shirey said. The CRA did not take a position on any of this year's time extension bills and, in fact, was caught off guard by the legislation, Shirey said. He endorsed Mullin's call for a “holistic approach” to the issue. One of the agencies sponsoring legislation this year is the San Jose Redevelopment Agency, which backs AB 1472 (Coto). That bill is intended to provide a 10-year extension to a project area in north San Jose's “Golden Triangle” that is scheduled to terminate in 2033. The extension is important now because the city usually issues 30-year debt to finance infrastructure. The bill would permit an extension based, in part, on either physical or economic blight. “We have been particularly hard hit here with job losses and vacant buildings, but we have a difficult time with the physical blight ,” said Harry Mavrogenes, executive director of the San Jose Redevelopment Agency. Additionally, SB 211's requirement that tax increment get spent on affordable housing within the project area is a problem for San Jose, which pools its tax increment, he said. The agency has plans for 32,000 housing units and 26 million square feet of industrial and office development on about 600 acres. Such development would need at least $500 million worth of infrastructure, yet the San Jose Redevelopment Agency, the state's largest redevelopment agency, has seen tax increment revenue decline by 25% in recent years to $148 million annually. Mavrogenes defended the development as “smart growth” because it would be in an existing urban area with a light rail line. If the development does not occur in North San Jose, the growth - especially the housing - will probably move to the edge of the region, leading to further traffic congestion, he contended. Although the San Jose bill stalled, Mavrogenes endorsed Mullin's decision to take a broad look. “I think it's obvious from the collection of these bills that SB 211, which is the mechanism available to these agencies, has some problems,” Mavrogenes said. The San Jose bill will apparently get no hearing in the Legislature this year. Neither will AB 517 (Hancock), which would give the Berkeley Redevelopment Agency an extension solely for low- and moderate-income housing projects; AB 921 (Daucher), which proposed 25-year extensions during which a redevelopment agency would keep only half of the tax increment; and AB 1167 (Chu), which would provide a 10-year extension to the El Monte Community Redevelopment Agency for transit-oriented development projects. A broader transit-oriented development bill appears to still have a chance at passage this year. Senate Bill 521 by Senate Transportation and Housing Committee Chairman Tom Torlakson (D-Antioch) would amend the statutory definition of blight to include the lack of high-density development within a transit village development district. The measure would permit redevelopment efforts within approximately one-quarter mile of a rail transit station. The area would not have to be “predominately urbanized,” as required by current redevelopment law. However, the project would have to get approval from the California Infrastructure and Economic Development Bank. The bill also would permit development by-right within transit village development districts adopted after January 1, 2006, meaning that a city or county could not require environmental review or discretionary permits if a project complies with a plan. Backers of SB 521, including BART and the California Chapter of the American Planning Association, contend the legislation would encourage growth that makes better use of infrastructure. Indeed, a Senate Local Government Committee bill analysis says, “ he substantial public investment in rail transit does not pay off if local officials fail to promote private development around rail transit stations.” Still, plenty of opposition exists. No Republican on the Senate Local Government Committee voted for SB 521. Los Angeles and Santa Clara counties oppose the bill because they fear the loss of revenue and worry about watering down the definition of blight. Even the CRA opposes SB 521. “While CRA supports the building of more housing closer to transit facilities,” Shirey wrote to CRA members, “we are opposing SB 521 unless amended to address our concerns about a redefinition of blight that will be hard to defend and state approval of redevelopment projects.” While the debate over the Torlakson bill is likely to continue this year, consideration of a bill that would let the City of Los Angeles establish a redevelopment project area at the port has ended. The bill, AB 1330 by Assemblywoman Betty Karnette (D-Long Beach) met stiff resistance in the Assembly Local Government Committee, where only one of seven members voted for the legislation. In addition to Los Angeles County, which would lose an estimated $25 million to $50 million in annual revenue, bill opponents included the San Pedro and Peninsula Homeowners' Coalition, a citizen group that has been a port watchdog for years. The redevelopment project, which would be governed by the mayor-appointed Board of Harbor Commissioners, would help fund a 400-acre, eight-mile-long retail, office and residential development along the waterfront. “It's bad enough that the port wants to do this giant commercial project on the waterfront,” said Homeowners' Coalition President Noel Park. “But we think it's inappropriate for a public agency with a cash flow of $600 million a year to tap into the tax increment for this.” The Assembly Local Government Committee agreed. A committee bill analysis stated, “ he conditions that exist in and around the harbor do not fit the state criteria for declaring blight and establishing a redevelopment area; the port is not an economic burden to the area, but a multi-billion dollar revenue-generating industry.” The bill appeared to be a way for the port to get past the State Lands Commission, which has jurisdiction over tidelands. The Commission strongly opposes the proposed waterfront development. Neither a Karnette aide nor a port spokeswoman was willing to talk about AB 1330. One final redevelopment bill that appears headed for approval is AB 1390 (Jones), which has already passed the Assembly. It would extend to 10 years the statute of limitations for enforcing the requirement that 20% of tax increment be setaside and spent for low- and moderate-income housing. The bill is a response to a 2003 court decision that the Escondido redevelopment agency did not have to reimburse the housing fund for underpayments that occurred more than three years prior to a lawsuit seeking enforcement. The appellate court in , 110 Cal.App.4th 1288 (see , September 2003), cited the three-year statute of limitations. Contacts: John Shirey, California Redevelopment Association, (916) 448-8760. Harry Mavrogenes, San Jose Redevelopment Agency, (408) 794-1000. Noel Park, San Pedro and Peninsula Homeowners' Coalition, (310) 832-5720. Assembly Housing and Community Development Committee, (916) 319-2085.

The First District Court of Appeal has blocked a developer's request to collect from its courtroom opponents the cost of preparing the administrative record in a California Environmental Quality Act lawsuit. The court held that the developer, Hayward 1900, Inc., was not eligible for the money because the City of Hayward had improperly delegated preparation of the administrative record to the developer. In 2002, the Hayward Area Planning Association, the Hayward Hills Property Owners Association and Greenbelt Alliance filed a lawsuit against the City of Hayward and the Hayward Unified School District over the environmental review for a controversial, long-discussed subdivision in the hills of the East Bay city. Hayward 1900 was the real party in interest. The project opponents later dismissed their claims against the school district. In June 2003, Alameda County Superior Court Judge Bonnie Lewman Sabraw ruled against the project opponents and awarded costs to the city and Hayward 1900. Hayward 1900 then sought $50,421, all but $228 of which was for preparation of the administrative record. The project opponents - who had never agreed to have the developer prepare the record - asked the court to reject the developer's bill because preparation of the record was the city's responsibility, because various costs included in the $50,000 bill were unreasonable, and because the bill included costs of preparing the school district record, which the district had waived. The trial court found some of the costs to be excessive, so the developer reduced its bill to $20,359. But the project opponents asked the appellate court to bar any cost recovery for the developer's preparation of the administrative record. A unanimous three-judge panel of the First District did just that. The decision centered on interpretation of one portion of CEQA, Public Resources Code § 21167.6. “Section 21167.6 authorizes only three ways to prepare a CEQA record, none of which were followed in this case,” Justice Linda Gemello wrote for the court. “The three alternatives are (1) that the public agency prepare and certify the record; (2) that the petitioner prepare the record, subject to certification by the public agency; or (3) that the parties agree to alternative method of preparing the record, subject to certification by the public agency. The city's delegation of the task to the real party in interest without obtaining the consent of plaintiffs was inconsistent with this statutory scheme.” Hayward 1900 argued that the statute did not bar its cost recovery, and the court conceded that the statute is ambiguous. Still, the intent of the statute is to minimize the cost of record preparation, and none of the usual restraints on cost preparation were in place here because of the city's unilateral delegation of record preparation to the developer, the court determined. The plaintiffs could not control costs because they were given no choice on the arrangement with the developer, the city itself did not submit a bill that it was forced to justify in public, and the city did not attempt to control the developer's costs, Gemello noted. “Although courts have allowed public agencies to collect the labor costs of outside assistance when they prepare the record under § 21167.6, subdivision (b)(1), no court has condoned the unilateral delegation of the task to a party with an interest in the litigation,” Gemello wrote. Thus, the court ruled, the developer's cost recovery must be denied. The Case: , No. A104903, 05 C.D.O.S. 2993, 2005 DJDAR 4033. Filed April 5, 2005. The Lawyers: For Hayward Area Planning Association: Jewell Hargleroad, McInerney & Dillon, (510) 465-7100. For Hayward 1900, Inc.: Philip Aktins-Pattenson, Sheppard, Mullin, Richter & Hampton, (415) 434-9100.

When a development project straddles the coastal zone boundary, the Coastal Commission may not use its jurisdiction over the portion of the project within the coastal zone to influence development outside of the zone, the state Supreme Court has ruled. In a case from Los Angeles's West Side, the court rejected the Sierra Club's argument that the Commission should have exerted authority over portions of a project located outside the coastal zone, but which could impact the coastal zone. The ruling was the second loss at the state's high court for opponents of Catellus Residential Group's West Bluff project, on a hill overlooking the Ballona Wetlands. Last December, the state Supreme Court ruled that affordable housing mandates for projects within the coastal zone did not apply because none of West Bluff's proposed houses or other private facilities were located within the coastal zone ( Coalition of Concerned Communities, Inc. v. City of Los Angeles , (2004) 34 Cal.4th 733; see CP&DR Legal Digest , January 2005). The project, for which construction began in 2003, is on 45 acres, 12 of which lie within the coastal zone. As approved by the City of Los Angeles, all 114 houses would be on the 33 acres outside the coastal zone. Still, the project needed a coastal development permit because Catellus proposed building a road from the Pacific Coast Highway through the coastal zone to provide access to 85 of the new houses. In addition to the street, the developer planned to build some storm drainage facilities and other infrastructure in the coastal zone. The Coastal Commission approved a permit for the coastal zone development in 2000. Environmentalists sued the Coastal Commission, arguing that the state panel should have denied the permit because the coastal zone construction would enable out-of-zone development that could impact resources within the coastal zone. Environmentalists lost at the Superior Court level and in the First District Court of Appeal. The California Supreme Court then took up the case, and, in a mid-May decision, ruled unanimously against environmentalists. At the high court, the Sierra Club presented a number of arguments, but the most important one was that the Coastal Act required the Commission to consider the impacts in the coastal zone of the houses. The Sierra Club contended that the housing development would be visually incompatible with the scenic area and could harm Ballona Wetlands, an environmentally sensitive habitat area (ESHA). The Commission countered that it did consider those impacts - to the extent they were related to development within the coastal zone. But, the Commission said, the Sierra Club wanted the Commission to use its jurisdiction over the proposed road to gain jurisdiction over the entire project, which would violate the Coastal Act. The state's high court accepted the Commission's argument. The court pointed out that the Commission conditioned its permit on bluff-face stabilization work, drainage improvements, bluff-face re-vegetation and the retirement of development rights on 15 parcels between the wetlands and the proposed houses. " he record makes clear that the Commission did in fact consider the ways in which the proposed development outside the coastal zone would produce impacts within the coastal zone, and the ways in which the proposed development inside the coastal zone, as further conditioned by the Commission to implement the Coastal Act's standards, would address those impacts," Justice Ming Chin wrote for the court. "The Commission's actions in this regard were proper under the Coastal Act." What the Commission correctly refused to do, Chin continued, was condition a permit for coastal zone based on changes to the portion of the project located outside the coastal zone. The Commission rebuffed environmentalists' request to tie the coastal development permit to fewer houses, more open space and a greater setback between houses and the edge of the bluff. In siding with the Commission, the court pointed to a 1978 amendment to the Coastal Act. The Legislature approved the amendment to Public Resources Code § 30604, subdivision (d) after the state attorney general issued an opinion that said the Coastal Commission may "deny permits on the basis that the portion of development outside the coastal zone would have adverse environmental impacts inside the coastal zone." The Legislature specifically refuted that opinion. " egarding developments straddling the coastal zone boundary, the Legislature intended to divide permit authority between the Commission and all other local public entities having jurisdiction over portions of the development outside the coastal zone," Chin wrote. The Sierra Club further argued that a portion of the Coastal Act - Public Resources Code § 30200, subdivision (a), which says that all public agencies considering activities outside the coastal zone must consider direct impacts on coastal zone resources - applied here. The Sierra Club said that the Coastal Commission was approving activities in the coastal zone that would support development outside the zone that could harm coastal resources in violation of § 30200 subdivision (a). However, the court found that this provision does not apply to the Coastal Commission. Even if it did, the Commission could not use it to overrule other public agencies, the court ruled. The Sierra Club also argued that the Commission's action was inconsistent with the California Environmental Quality Act and that it conflicted with the Commission's duties under the federal Coastal Zone Management Act. The high court rejected both arguments. The Case: Sierra Club v. Coastal Commission , No. S116081, 2005 DJDAR 5757. Filed May 19, 2005. The Lawyers: For Sierra Club: Frank Angel, (310) 314-6533. For the Coastal Commission: Hayley Peterson, deputy attorney general, (619) 654-2540. For Catellus: Robert Crockett, Latham & Watkins, (213) 485-1234.

Most government budget crises get bailed out by increasing tax revenue, and the current situation in California appears to be no exception. With tax receipts on the rise throughout California, Gov. Arnold Schwarzenegger was able to throw several billion dollars into the kitty as part of the “May revise” - the annual revision of the governor's budget proposal to the Legislature. The surprise is that he threw the money at transportation instead of education. Though faced with daily television attack ads from the state teachers' union, Schwarzenegger gave education only about $100 million. Meanwhile, he has earmarked about $1.3 billion to fund Proposition 42 - the 2002 ballot initiative that sets aside sales tax on gasoline for transportation projects but which has been suspended by the Legislature every year since. Another $2.5 billion will go toward reducing the budget deficit. The governor's plan has highlighted the increasing tension between local governments and educators, who increasingly must lobby in Sacramento for pieces of the same pie. But Schwarzenegger may also have painted himself into a corner on transportation, because he now must decide which Davis-era, Democrat-driven transportation projects he wants to fund under Proposition 42. The governor also appears to be picking a fight with the Legislature over how the money is spent, because he is tying the transportation funding to a package of three bills that Republicans like and Democrats don't. The truth of the matter is, even if he gets what we wants, he's still surrounded by Democrats and must, to a certain extent, move on a Democratic agenda. It's no secret that the state's transportation construction accounts are almost broke. Most State Transportation Improvement Plan (STIP) projects have been postponed for at least two years, and STIP funding - usually well in excess of $1 billion a year - dropped to less than $300 million in 2004-05. Virtually no funds are currently flowing into design and construction of highway projects by Caltrans. Schwarzenegger rationalized the idea of putting funds into transportation construction rather than operating funds for education by arguing that the revenue boost is a one-time bump of several billion dollars caused by a recent tax amnesty. In so doing, he is attempting to differentiate himself from Gov. Gray Davis, who got the state into a bind by using rapidly increasing revenues in the years of the Internet bubble to fund increases in state operating programs that benefited his labor union supporters. Schwarzenegger's strategy has been supported by nonpartisan Legislative Analyst Elizabeth Hill, though her staff contended that the tax amnesty portion of the revenue increase was a minor portion of the overall rise. But Schwarzenegger has run into stiff partisan opposition in the Legislature itself. “This governor just doesn't get it,” said Assembly Speaker Fabian Nunez, a Democrat and former labor union official. But that is not the end of it. Schwarzenegger has tied funding Proposition 42 to passage of his “GoCalifornia” proposal - a package of three bills designed to speed up the highway construction process mostly through privatization. The three bills are: o AB 850 (Canciamilla), which would permit private companies to build more toll roads. o AB 1266 (Niello), which would permit Caltrans to start building a project when the first phase is designed, rather than waiting for the entire project to be designed. o SB 705 (Runner), which would permit Caltrans to let design-build contracts for transportation projects. The last two bills are meant to address the Caltrans project delivery problem - the fact that transportation projects get stuck in a bottleneck inside the agency at the design and environmental review stage. But the Runner bill in particular is likely to face opposition, as it would take some projects out of the hands of unionized engineers at Caltrans. Contracting out design work has been a major issue between Caltrans and the union for several years, especially as the project delivery problem has gotten worse. Even if the Legislature approves Schwarzenegger's budget and the GoCalifornia bills - both of which are big ifs - the governor still faces the tough political question of which projects to fund under the Transportation Congestion Relief Program (TCRP). By funding Proposition 42, Schwarzenegger does not get full discretion over how to spend the money. The measure requires that about half of the money go to fund at least some of the 141 projects contained in the TCRP, with the remainder split between the STIP, local road improvements, and public transit. The problem for Schwarzenegger is that the TCRP list of 141 projects is a Democratic list devised by the Davis administration in 2000. The Davis list - jokingly called the “G-TIP” at the time - favored urban Democratic areas at the expense of suburban and rural Republican areas, and tended to provide about 30% of the funding required for very large projects - enough to drive the STIP funds in their direction (see , July 2000, August 2003). This list was memorialized with the passage of Proposition 42 in 2002; however, no allocations have been made since that time because Proposition 42 has been suspended each year in the name of a “budget emergency.” One of the first things Schwarzenegger tried to do after ousting Davis in 2003 was to jettison the TCRP, but he failed. Now he is faced with having to pick and choose from among Davis's pet projects. Business, Transportation, and Housing Secretary Sunne McPeak has been coy about which TCRP projects would get funded, saying only that it is up to the California Transportation Commission. But the CTC is made up of gubernatorial appointees, most of whom come from the construction and development industry. In its most recent report to the Legislature, the CTC identified about 40 TCRP projects ready for construction, totaling about $1 billion in TCRP funding. The two biggest projects are the Wilshire Boulevard busway in Los Angeles and a set of high-occupancy vehicle lanes in the “Orange Crush,” where the 5, 55 and 22 freeways meet in Orange County. All of the other large projects are rail or bus projects, including grade separations for Alameda Corridor East; a light-rail project in North San Diego County; and significant passenger rail improvements in Los Angeles County. Few highway projects - and few Northern California projects - are on the list. It is entirely possible, of course, that Schwarzenegger will not get what he wants on transportation. The Democratic Legislature, backed by the teachers union, might shift the money to education. Or the Democrats may stand in the way of the GoCalifornia bills, forcing Schwarzenegger to act on his threat not to restore Proposition 42. But even if everything goes his way, the Republican governor and his transportation commissioners will still be stuck funding a list of urban Democratic projects. So in this case, maybe Gray Davis will have the last laugh after all.

The California Supreme Court has accepted two more land use cases, one of which is a California Environmental Quality Act (CEQA) case that has generated quite a bit of discussion. The second one is an inverse condemnation case involving street landscaping that blocks a view of billboards. The CEQA case was filed, ironically, by potential developers. Muzzy Ranch Company, which owns 5,000 acres of farmland, sued the Solano County Airport Land Use Commission after the panel adopted a land use compatibility plan for territory surrounding Travis Air Force Base in 2002. The compatibility plan froze development on hundreds of thousands of acres over 35 miles at the level permitted by the existing general plan and zoning regulations. The airport commission determined that the plan was exempt from CEQA review. Muzzy Ranch argued that adoption of the plan would cause indirect environmental impacts by re-directing housing development that would have occurred around Travis to other locations in the region. A trial court judge rejected the argument, but the First District Court of Appeal accepted it (see , March 2005). The appellate court ruled that adoption of the plan was a “project” within the meaning of CEQA and required environmental review. Thus, one of the questions for the state Supreme Court is whether adoption of an airport compatibility plan that recommends maintaining a county's existing general plan and zoning is a project under CEQA. Furthermore, the appellate court specifically rejected the airport commission's contention that it could not study housing displacement because the commission would have to speculate about other agencies' future land use decisions. The court ruled that adoption of the plan was a “conclusive step” that “will foreseeably lead to some displacement of future development.” That part of the ruling has spurred discussion among CEQA practitioners over how far - in both time and distance - an environmental review must reach. The case is , No. S131484. The second case involves a billboard company that sought compensation for damages after the City of Los Angeles planted trees along Century Boulevard that blocked the visibility of six billboards near Los Angeles International Airport. The billboard owner contended that the landscaping amounted to inverse condemnation. However, the Second District Court of Appeal ruled that loss of visibility, without the loss of access to the billboards, was not enough to sustain the billboard owner's claim (see , May 2005). The Second District also ruled that the billboard company owed the city $83,000 in expert witness fees, even though the city accumulated the expense before a settlement offer was made. The billboard company said the awarding of fees violated the Code of Civil Procedure. The case is , No. S132619.

Two water transfers from irrigation districts to the City of Tracy did not require a combined environmental impact report, the Third District Court of Appeal has ruled. The court found that the separate negative declarations adopted by the irrigation districts provided adequate review under the California Environmental Quality Act (CEQA). The court rejected the Sierra Club's arguments that the entities involved had improperly segmented one project, that cumulative and growth-inducing impacts had not been adequate addressed, and that the effects of delivery cutbacks were ignored. In writing for the court, Justice George Nicholson issued this warning: “The Sierra Club's failure to raise any facts to suggest cumulative or growth-inducing impacts exposes a possible intent to use CEQA simply to create delay. We caution CEQA plaintiffs 'that rules regulating the protection of the environment must not be subverted into an instrument for the oppression and delay of social, economic or recreational development and advancement.' ( , (1990) 52 Cal.3d 553, 576)” In 1993, Tracy adopted a new general plan, under which the city's population could roughly quadruple to 130,000 people over 20 years. The general plan's environmental impact report calculated that the city would need 39,000 acre-feet of water per year to serve all of the growth permitted by the general plan. The city at the time had only 16,000 acre-feet of water - 10,000 acre-feet from the federal Central Valley Project (CVP), and 6,000 acre-feet of groundwater. The EIR said the city was exploring possible water transfers and directed the city to secure additional water sources. In 2001, the city signed separate agreements with The West Side Irrigation District and the Banta-Carbona Irrigation District. The contract with West Side assigned 2,500 acre-feet of water rights from the Central Valley Project to the city, and gave the city an exclusive option to obtain another 2,500 acre-feet of West Side's CVP water. The agreement with Banta-Carbona assigned rights to 5,000 acre-feet of CVP water to the city. In September 2002, the districts adopted negative declarations for the transfer of annual water rights. The Sierra Club sued the districts and the city for allegedly violating CEQA. San Joaquin County Superior Court Judge Bob McNatt ruled against the environmental group, a ruling that the Third District upheld on appeal. The Sierra Club contended that the two water transfers amounted to one project under CEQA, and that the city - not the irrigation districts - should have prepared one EIR. The Sierra Club pointed out that the water transfers rely on nearly identical initial studies, both require city and Bureau of Reclamation approval, and both seek to convert 5,000 acre-feet of CVP water from agricultural to urban uses. The appellate court was not convinced. It found that the assignments of water rights were separate and that the water districts could serve as lead agencies for the environmental reviews. The assignments were approved by different agencies, may be implemented independently, are not contingent on one another, involve separate water rights and different amounts, and were negotiated separately, the court noted. “Moreover,” Justice Nicholson wrote, “both initial studies acknowledge the other proposed assignment and analyze the cumulative impacts of both assignments.” Regarding those cumulative impacts, the Sierra Club contended that the negative declarations were deficient. The documents reported that the water transfers would not have incremental effects because the transfers would have no impact on area hydrology or growth beyond what had already been studied in the general plan EIR. The Sierra Club listed development projects that should have been considered in the environmental review, but that list did not satisfy the court. “Merely listing, as the Sierra Club does, other projects occurring in the area that may cause significant cumulative impacts is not evidence that the assignments will have impacts or that their impacts are cumulatively considerable,” Nicholson wrote. As for growth-inducing impacts, the court noted that the new water would be provided only to areas covered by the general plan, and that the negative declarations incorporated the general plan EIR's discussion of growth-inducing impacts. That approach was sufficient, the court ruled. As for cutbacks in CVP water deliveries during droughts, Nicholson wrote, “ he entire environmental analysis consists of analyzing the impacts that would occur under the very situation of which the Sierra Club complains.” The Case: , No. C044989, 05 C.D.O.S. 3390, 2005 DJDAR 4507. Filed March 22, 2005. Ordered published April 20, 2005. The Lawyers: For Sierra Club: Donald Mooney, (530) 758-2377. For the irrigation districts: Jeanne Zolezzi, Herum, Crabtree, Brown, (209) 472-7700. For the City of Tracy: Martha Lennihan, (916) 321-4460.

A new opinion issued by the state attorney general's office regarding housing elements appears to allow cities and counties to skirt their mandated fair-share housing numbers if the local government lacks the resources sufficient to provide the units. However, a number of people involved in the housing element process have downplayed the importance of the opinion. The Department of Housing and Community Development (HCD) called it merely a restating of existing law that does not affect the requirement that local governments plan for their fare share of housing at all income levels. The opinion by Deputy Attorney General Gregory Gonot came in response to a request from San Luis Obispo County, where controversy over the last round of the regional housing needs assessment was particularly sharp. The county, cities and the San Luis Obispo Council of Governments (SLOCOG) were at odds with HCD over the number of housing units for which the state officials said the county and cities must plan, in part because the state-mandated figures clashed with local growth management policies (see , July 2002). In the end, the county was willing to incorporate thousands more units of moderate and upper-end housing units into the county housing element, thus relieving the burden on the seven cities. Growth management policies, however, were not part of the question that the attorney general chose to answer. After convincing SLOCOG to reduce four housing law inquiries down to a single question, the attorney general addressed only financial resources. Gonot concluded: “A community may establish its maximum number of housing units by income category that can be constructed, rehabilitated, and conserved over the next five-year period below the number of housing units that would meet the community's goal of achieving its share of the regional housing needs established pursuant to the planning and zoning law if the community finds that its available resources in the aggregate, including but not limited to federal and state funds for its housing programs, its own local funds, tax or density credits, and other affordable housing programs, are insufficient to meet those needs.” In a process that chafes local officials across the state, HCD determines how many housing units - and at what income level - a regional should plan for over a five-year period. Councils of government then divide those numbers of among member cities and counties, which are supposed to incorporate their assigned numbers into updated housing elements. This is all known as the regional housing needs assessment (RHNA) process. Government Code § 66583 authorizes a city or county to determine a “quantified objective” that sets the maximum number of housing units by income category that can be provided over five years, according to Gonot. This maximum number “need to be identical to the total housing needs” that come out of the RHNA process if the local government lacks the resources to satisfy the need, Gonot writes. “ he legal issue to be resolved is whether federal and state housing funds constitute part of a community's 'resources' for purposes of setting the community's quantified objectives,” the opinion states. “We believe that such funds constitute some of the resources of a community.” The opinion continues, “We note, however, that if a lack of federal and state funds is found by a community to be one of the circumstances causing the community to set its quantified objectives below the number representing its total housing needs, the validity of such determination may be challenged in court by any interested party pursuant to the terms of Government Code § 65587. Moreover, it would not be appropriate to look solely at the unavailability of federal and state housing funds without determining whether other resources were available to meet the community's share of the regional housing needs.” In San Luis Obispo County, the opinion states “basically what we had assumed,” said Peter Brown, a planner for SLOCOG. Brown said SLOCOG raised the question for the AG because of concerns that the RHNA process created unfunded mandates on local governments that are unable to accommodate all of the new housing assigned by the state. The AG's opinion appears to say that there is no unfunded mandate because local governments must take into account federal, state and local resources. Still, the opinion does recognize that there are limits to what local governments can do to provide housing, said Bill Higgins, of the League of California Cities' Institute for Local Government. Funding for affordable housing is “a huge limitation,” he said. But if a city that is updating its housing element cites funding limitations, it had better be prepared to defend itself to both HCD and a court, he added. Janet Huston, an HCD spokeswoman, called the opinion a “reiteration of current law.” “The law is clear that communities have to plan for these targets, but you can't force communities to construct those units,” Huston said. “There's really nothing new in this regard in the opinion.” The opinion does spell out what resources a city or county must consider, which is helpful, she said. Mike Rawson, an attorney for the California Affordable Housing Law Project, said that the opinion did not break new ground. “Before the question was asked, I think everybody agreed on the answer: Your quantified objective in the housing element does not have to be equivalent to your housing need,” Rawson said. The requirement to plan for a fair share of housing units is a separate question, he said. Rawson agreed with HCD officials that the opinion is helpful in specifying that a city or county must count all resources available - federal, state and local. The attorney general's opinion is No. 03-104. It was published May 18, 2005 at 2005 DJDAR 5766. Contacts: Peter Brown, San Luis Obispo Council of Governments, (805) 781-4219. Janet Huston, Department of Housing and Community Development, (916) 324-4477. Mike Rawson, California Affordable Housing Law Project, (510) 891-9794, ext. 145. Bill Higgins, League of California Cities, Institute for Local Government, (916) 658-8250.