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After a 30-odd-year delay, the Governor's Office of Planning & Research has released a working draft of the Environmental Goals & Policies Report – a document that OPR is supposed to produce every four years. Titled, " California's Climate Future ," the draft is a high-level document laying out overall policy goals, focusing especially on climate change and greenhouse gas emissions reductions. It's the first time an EGPR draft has been released in 35 years – since the last time Jerry Brown was governor, when OPR released the "Urban Strategy for California". The new document focuses on the prospect of California with a population of 50 million as well as the stresses of climate change. But the draft shows how difficult it is to set hard metrics in the world of land use and transportation compared to the world of energy conservation. The EGPR also sets an ambitious goal for greenhouse gas emissions reduction: 80% by 2050, the same figure that was included in Gov. Arnold Schwarzenegger's 2005 Executive Order. There is no state statute containing that goal – the only statutory goal is a reduction to 1990 levels by 2020, contained in AB 32 – although litigation against the sustainable communities strategy in San Diego has successfully used the Executive Order's target as a de-facto state goal. The EGPR contains specific sub-goals for energy conservation, but only general descriptions of desirable goals and metrics regarding land use. The proposed EGPR is organized around six high-level goals: A strong economy Thriving urban areas  Prosperous rural regions  A clean environment  Clean and efficient energy system  Efficient and sound infrastructure  This is fine rhetoric – and not surprising – but the EGPR also seeks to set up a series of metrics that would measure the state's progress toward the goal. The metrics call into five categories: 1. Decarbonize the State's Energy and Transportation Systems  2. Preserve and Steward the State's Lands and Natural Resources  3. Build Sustainable Regions that Support Healthy, Livable Communities  4. Build Climate Resilience into All Policies  5. Improve Coordination Between Agencies and Improve Data Availability Each of these five areas of measurement contain a set of more specific targets. For example, the "decarbonize" goal calls for a 33% renewable energy generation by 2020 (already a state law) and 1.5 zero-emission vehicles by 2025. Targets #2 and #3 above – natural land and sustainable communities – have a direct impact on the planning and development world in California. But the metrics in these areas contained in the EGPR are not as quantitative as those for the energy sector.  In the case of natural and agricultural lands, the proposed metrics are: 1. Land conversion  2. Land protection status  3. Water consumption  4. Use of recycled and reclaimed water  5. Bioenergy development and use  Though the draft EGPR includes some information about the state's measurement of conversation of agricultural and natural land for development, it does not include or propose specific metrics. Similarly, Target #3 -- Build Sustainable Regions that Support Healthy and Livable Communities – includes some broad discussion of possible metrics but not a whole lot of specifics in the way of metrics. This target contains four specific goals, including environmentally sensitive infrastructure investment; a transportation investment strategy that focuses on walking, biking, and safe routes to school; and better education and workforce training. Perhaps the most interesting specific goal under Target 3 is "Build a redevelopment program that allocates funds in alignment with environmental goals as evidenced through some of the following activities". At first glance, one might think that this is pretty earth-shattering: The Brown Administration is endorsing a new "redevelopment program". But because it's a high-level document, it's short on specifics. As possible strategies it lays out the following  1. Alignment of local General Plan with regional sustainable communities strategy (where ?applicable). 2. Coordination with school districts on long-term planning issues.  3. Natural resource protection plans that reflect long-term environmental goals.  4. Adoption of climate change or sustainability plans that address emission reduction as well as steps to build climate resilience.  5. Develop plans to help communities manage planned retreat from rising sea levels. And it contains no specific proposals for metrics that would suggest how to measure progress toward these goals or targets.  The EGPR was required as a result of a law carried by then-Assemblyman Pete Wilson in the early 1970s. Since Brown's 1978 "Urban Strategy," no governor has released an EGPR, though both the administrations of Wilson and Arnold Schwarzenegger worked on drafts that floated around Sacramento.  The 1978 Urban Strategy  was similarly lofty to the current draft in its goals and aspirations, but – unlike the current draft – it did contain a detailed "action plan" of specific steps the state should take. Among the proposed actions: A CEQA exemption for housing in infill locations.

A couple of weeks ago, the Cupertino City Council approved the long-awaited, 3.2-million-square-foot Apple Campus 2. Approval means that the building, notable for its purely circular footprint, is to arise on an open field north of Interstate 280, with completion expected in about two years. Designed by architectural luminary Sir Norman Foster, the main office building is notable for a purely circular footprint. Both Apple and the architect suggest that the horizontally oriented, four-story building will be gentler on Gaia than a tall building. The campus, which is roughly four times larger than Disneyland, will include additional buildings for a gymnasium and a 1,000-seat auditorium; the latter is the only public venue on the 275-acre site. Even if the landscape scheme does not coordinate with the building designs in any obvious way, the site plan is positively fuzzy with greenery, so that is another plus. On one level, the circular building – which was personally unveiled by its principal proponent, the late Apple Chairman and Co-founder, Steve Jobs, about 18 months ago – is a continuation of the elegant, minimalist design esthetic that has made Apple a consistent standout in industrial design. It's hard not see the building as a kind of overscaled funerary monument to Jobs. Immense, solemn and symbolic with a capital "S," the new Apples headquarters is reminiscent of the "The Cenotaph of Newton," a monumental scheme by the French architect Etienne Boullee (1728-1799). Never built and probably impossible to construct, the Centotaph consists of an immense empty globe, topped by a dome larger than that of the ancient Pantheon in Rome.  So the new Apple office building is the Cenotaph of Steve, with some of the arrogance and visionary power of the Apple co-founder finding expression in this impressive, if ultimately irrational design. Architects love circular floor plans, in part because of the "infinite" or endless nature of the circle. The Romans built circular "tempietti" as well as the super-sized Pantheon. Much later, in the Italian Renaissance, architects became obsessed with the idea of designing circular churches, even though the circular floor plans did not accommodate themselves easily to the ceremonies of the Catholic Church, and were rarely built. Even more recently, circles beguiled that great genius -- and even greater crank -- Frank Lloyd Wright, who relied on circles in several of his latest, most eccentric buildings, such as the Guggenheim Museum in Manhattan. One major difference between the circles in Renaissance design and the Apple campus is the Renaissance conceived circular spaces that were active, important places. (Many of the schemes place the church alter at the center of the circular plans.) One possible advantage of the circular plan is a continuous interface with the outdoors. Yet there is something empty about the garden scheme, at least as it stands: Rather than being a destination in itself, the center of the doughnut hole is negative space; it is an awkward condition to be mitigated. While Apple office workers will likely take advantage of the building's design to frequently spend plentiful time outdoors (and this is a big win), few will stray to the center of the doughnut hole. There's no reason to go there. It's an empty precinct filled with trees, or a type of "greenwash." Curved spaces may not be better than straight corridors for most people.  If long straight corridors are tiresome to walk, are curving corridors less frustrating? Curved hallways lack a visual endpoint, which is part of the way that we orient ourselves in space. Plus, most of us prefer to walk in a straight line, which is, after all, the shortest path between two points. Perhaps the doughnut is so large in scale that entire departments can all work together, all within the same view shed, without the desks of coworkers curving off into the unseen distance. If the building is meant to encourage communication among people working in different disciplines inside the same building, however, the circular design seems to works against that goal.  Some renderings of the office building interior depict an internal monorail system to deliver workers from one point to another within the circular periphery, which speaks to the difficulty of getting from A to B in this very large building. By the by, we noticed that the approval of the new Apple HQ was somewhat overshadowed by the Congressional vote the same day to re-open the federal government. Apparently, there was a train wreck with a really bad website that was trying to redistribute wealth to minorities by providing health care to sick people, or something like that. I wasn't paying attention. Anyway, some of our readers would like to know more about the new Apple headquarters, so we are providing the following Frequently Asked Questions (FAQ). Question: In what way is the U.S. Congressional delegation similar to the new Apple headquarters? Answer: They are both big zeroes. Q:  In what way do Congress and the Apple HQ differ? A: Congress is a waste of time, while the Apple HQ is a waste of both time and space. Q: What is the role of landscape in the form of this immense building? A: Uh… none. Why do you ask? Is that important? Q: How can such an immense building fit harmoniously with the rest of the surrounding city? A: What city? Do you see a city? (peals of laughter, followed by a sharp elbow to the ribs.) Q:  What does this immense monolith say to the people who work in it? A:  "You miserable little ants! Watch out I don't step on you!" Q: What does this circular oddity say about the late Steve Jobs? A: Overcompensation for his inability to throw a Frisbee? Q: How shall this building be known in the popular imagination? A: Maybe as Steve Jobs' Circle Works?

The California Supreme Court has ruled that an inclusionary housing requirement is an exaction rather than a land use regulation – a distinction that means inclusionary housing could be judged by the same nexus and proportionality requirements as other exactions. In a unanimous ruling last Friday, the Supreme Court reversed an appellate court ruling and sided with developer Sterling Park in an ongoing dispute against the City of Palo Alto. Sterling Park had sought to fulfill its inclusionary housing commitment under protest, as permitted by the Mitigation Fee Act (Govt Code Section 66020). Palo Alto claimed that the inclusionary housing requirement was not an exaction under the Mitigation Fee Act but rather a land use regulation under the Subdivision Map Act (Govt Code Section 66499.37). Palo Alto's inclusionary housing program "is different from a land use regulation … (a limit on the number of units that can be built); instead, it is similar to a fee, dedication, or reservation under section 66020," wrote Justice Ming Chin for the unanimous court. The Supreme Court did not decide the merits of the case, in which Sterling Park challenged the inclusionary housing ordinance as an impermissible use of the city's power to impose exactions in exchange for land-use permits. Instead, it remanded the case to the Sixth District Court of Appeal for that decision. However, the Supreme Court's ruling certainly sets the stage for a possible ruling that would outlaw or significantly rein in  inclusionary housing ordinances. Under exaction law, a jurisdiction seeing to impose an inclusionary housing requirement on a developer would have to prove a strong nexus between the construction of the project and the need for affordable housing. In the 2009 case Palmer v. City of Los Angeles , 175 Cal.App.4th 1396 (2009), the Second District Court of Appeal called into question the legal validity of inclusionary housing requirements on rental housing projects. The court ruled uled that an inclusionary housing requirement on a rental development project near Downtown Los Angeles was effectively setting the rent on the housing units, thus violating the state's Coast-Hawkins Rental Housing Act. Just last week, Gov. Jerry Brown vetoed AB 1229, a bill designed to overturn the Palmer ruling, by saying he wanted to wait to see what the Supreme Court did in the Sterling Park case. The case began in 2006, when Sterling Park LLC sought approval of a proposal to demolish an existing commercial development on 6.5 acres of property on West Bayshore Drive and replace it with 96 residential condominiums. As a condition of approval, Sterling Park agreed, under the city's inclusionary housing ordinance, to set aside 10 units for affordable tenants and also pay the city a fee totaling approximately 5% of the actual sales value of the market-rate units. Three years later, however, Sterling Park filed a letter of protest as permitted under Government Code Section 66020, a part of the Mitigation Fee Act, claiming that the developer had agreed to the conditions under duress and claiming that the inclusionary housing requirements were invalid. The city did not respond and Sterling Park sued, seeking invalidation of the inclusionary housing requirement. In response, the city argued that the inclusionary housing requirements were not exactions imposed under the Mitigation Fee Act but, rather, conditions of approval imposed under the Subdivision Map Act . The Mitigation Fee Act contains the protest procedure that Sterling Park followed; the Subdivision Map Act has not such equivalent procedure. Both the Superior Court and the Sixth District Court of Appeal ruled in favor of the city, but the Supreme Court reversed. The appellate court had relied heavily on Trinity Park, L.P. v. City of Sunnyvale (2011) 193 Cal.App.4th 1014, which held that the Mitigation Fee Act covered only impact fees designed to defray the cost of infrastructure needed to serve the project. By contrast, the Supreme Court relied heavily on Fogarty v. City of Chico (2007) 148 Cal.App.4th 537, which held that the phrase "or other exactions" contained in the Mitigation Fee Act should be interpreted broadly. The Fogarty case, in turn, depended in large part on an appellate court ruling in Williams Communications v. City of Riverside (2003) 114 Cal.App.4th 642. Using the reasoning of Fogarty and Williams , rather than the ruling in Trinity, the Supreme Court so long as the number of units being constructed is not being challenged – in issue that would be covered by the Subdivision Map Act -- the conditions attached to how those units may be rented or sold can be litigated under the Mitigation Fee Act during or after construction of the project.  "The procedure established in section 66020, which permits a developer to pay or otherwise ensure performance of the exactions, and then challenge the exactions while proceeding with the project, makes sense regarding monetary exactions.," wrote Justice Chin or the court. "By the nature of things, some conditions a local entity might impose on a developer, like a limit on the number of units … cannot be challenged while the project is being built. Obviously, one cannot build a project now and litigate later how many units the project can contain — or how large each unit can be, or the validity of other use restrictions a local entity might impose. But the validity of monetary exactions, or requirements that the developer later set aside a certain number of units to be sold below market value, can be litigated while the project is being built." In the case of the Sterling Park development, Chin wrote, Palo Alto's inclusionary housing ordinance "offers developers two options, either of which, by itself, would constitute an exaction. The imposition of the in-lieu fees is certainly similar to a fee. Moreover, the requirement that the developer sell units below market rate, including the City's reservation of an option to purchase the below market rate units, is similar to a fee, dedication, or reservation."

California's Office of Planning & Research appears likely to make a major impact this year by revising the General Plan Guidelines and pushing the envelope on the California Environmental Quality Act in a way that hasn't been seem for a decade or more. OPR is currently preparing an update of both the General Plan Guidelines and the CEQA Guidelines. Such updates are not usually front-page news, but this time around both cases could be the leading edge of significant change in the pra ctice of planning in California. The General Plan Guidelines now in the works will focus on integrating the process of updating plans with environmental review, which is often tacked on to the end. "All of the feedback I've been getting is that CEQA eats the life out of your general plan – the tail wags the dog," said OPR's CEQA expert Chris Calfee at last week's state planning conference in Visalia. Meanwhile, OPR also must undertake implementation of the many revisions to the California Environmental Quality Act that Gov. Jerry Brown has pushed through the Legislature since he took office – most importantly, rethinking the "Level Of Service" standard for traffic.  "We are looking very seriously at vehicle miles traveled as a more appropriate measure of a particular development on traffic and traffic services and what are the impact on complete streets and transportation alternatives," OPR Director Ken Alex said in a keynote speech in Visalia.  The timelines for each of these updates are tight. Under the terms of SB 743 – recently signed by Gov. Jerry Brown – OPR must come back with a report and a proposed game plan by July. Meanwhile, OPR hopes to complete the General Plan Guidelines update by December. As one tweeter from Visalia suggested, OPR is not preparing "your father's General Plan Guidelines update". Key to the state's approach is the availability of thousands of layers of geographical data on the state's "geoportal" .  But it may be the connection to CEQA that is most important part of the General Plan Guidelines update.  Regarding the way CEQA "eats" General Plans, Calfee said in Visalia: "We can address some of that if we look at how we do timing of General Plans and EIRs. We want to revamp section on CEQA and General Plans to better address what are the key intersections between development of General Plan  and development of CEQA review. We may put out a time line in order to get people to think about environmental issues at the very front end of the process." He added: "Also, we want to set forth other key linkages between General Plans and environmental review. Project objectives in the General Plan -- those should be linking up to project objectives in EIR. Alternatives prepared for General Plan should be the alternatives in your EIR. And so forth."

So, what did Sen. Darrell Steinberg's last-minute switcheroo mean for CEQA reform? More than you might think. As you may have heard, during the last week of the Legislative session, Steinberg gave up on his bill to reform the California Environmental Quality Act – SB 731 – in order to focus on a bill providing CEQA breaks for a new arena in Sacramento, SB 743. He also gave up on his redevelopment revival bill, SB 1, even though that bill was just one slam-dunk Assembly floor vote from the governor's desk. The irony is that after fighting rear-guard actions all summer against both CEQA critics and CEQA defenders on SB 731, Steinberg actually got some significant reform at the last minute in the Sacramento arena bill. By moving quickly at the end of the session – something he prohibited former Sen. Michael Rubio from doing last year -- he also freed himself from the morass that 731 had gotten bogged down in. And since Steinberg reportedly pulled the switcheroo after meeting with Brown, it seems likely Brown will sign the bill. The two most important changes have to do with (1) parking and visual impacts of infill projects, and (2) the possibility of giving the Brown Administration a run at traffic level-of-service analysis in infill locations. The bill also eliminated a 2009 sunset date for the creation of "infill opportunity zones" under state law. The first issue  is likely to have an immediate impact on how infill projects are handled under CEQA. SB 743 says that parking and visual impacts shall not be considered significant impacts on infill projects. There's some wiggle room here for local design standards, but this is still a pretty big deal. Even the intent language is a big deal, because it is clearly designed – maybe for the first time in the history of CEQA – to put traffic in its place at least in infill locations: "It is the intent of the Legislature to balance the need for level of service standards for traffic with the need to build infill housing and mixed use commercial developments within walking distance of mass transit facilities, downtowns, and town centers and to provide greater flexibility to local governments to balance these sometimes competing needs." The free pass for parking and visual impacts only applies to infill parcels – that is, parcels that are surrounded on three sides by development – in transit priority areas, defined as areas within a half-mile of a major transit stop. A major transit stop in state law typically means any rail stop, or any bus stop with 15-minute headways. In practical terms, what this means is that parking and visual impacts wodn't trip an environmental impact report on an infill project and therefore the likelihood of prolonged litigation on infill projects is significantly reduced. The provision of SB 743 dealing with levels of service is potentially far more significant, though it might take a while to play out. The bill requires the Governor's Office of Planning & Research to prepare new significance thresholds for noise and transportation impacts in infill locations. This was undoubtedly part of the conversation with Brown, because OPR is eager to take a run at levels of service. The ‘90s-era congestion management act basically requires CEQA analysis to take traffic congestion into account. This has led to a situation where the traffic analysis consumes more time and attention than anything else in a CEQA analysis; and it has made approval of infill projects an uphill battle because, obviously, traffic congestion is more likely to be present in an infill location than a greenfield location. CEQA practitioners around the state are struggling to figure out how to either revise or jettison the level of service standard – often simply giving up and acknowledging that LOS "F" (the worst congestion) is simply inevitable and therefore acceptable. It's well-known that OPR wants to take a run at a new level of service standard – this was one of the many topics of OPR's proposed changes to SB 731 – and this provision will give the office a chance to come up with something. All this does not mean that the other proposed changes contained – or potentially contained – in SB 731 are dead. This year is the first year of a two-year legislative session, and so Steinberg simply carried 731 over to next year.  The same is true for SB 1. This bill would revive tax-increment financing on a limited basis with no impact to the state's general fund when a city, a county, and special districts agree on a strategy that conforms with the sustainable communities strategy. Brown vetoed the same bill last year but Steinberg vowed to bring it back – he introduced as SB 1 in order to make a point – and claimed he had a better shot this year at getting Brown to sign it.  If Steinberg had permitted the last Assembly floor vote to occur, however, SB 1 would have gone to Brown's desk; and if Brown vetoed it, Steinberg would have had to start over again next year. By holding it over, he can move quickly early next year and hope that Brown signs the bill – Steinberg's last year in the Senate before he is termed out.

In the pantheon of developer complaints about the California Environmental Quality Act, perhaps the most common one is that it's too easy to use it to file crazy lawsuits purely for the purposes of gumming up the works. Which is maybe why the building industry and property rights advocates have spent so much time lately filing CEQA lawsuits apparently designed to gum up the works. It's hard to know exactly how seriously to take these lawsuits – especially in the context of endless and unsuccessful efforts at CEQA reform, which are stymied in large part by citizen activists and labor unions that often use CEQA as leverage over the developer or the retail business attending to construct a new project. Nevertheless, the building industry does appear to be trying to use CEQA, increasingly, to attack environmental protections. This appears to be especially popular in the Bay Area. Exhibit No. 1 is the recent lawsuit by the California Building Industry Association, using CEQA to attack the creation of significance thresholds, which any lead agency must create in order to comply with CEQA. The case challenged the creation of significance thresholds by the Bay Area Air Quality Management District, which CBIA said required a CEQA analysis. You can read the details of the case here , but the bottom line is that CBIA attempted to persuade the courts that CEQA should apply to CEQA. The First District Court of Appeal didn't buy the argument, saying the 7,000-page administrative record was probably sufficient. Exhibit No. 2 – also from the Bay Area – is the Pacific Legal Foundation's lawsuit against One Bay Area, the region's sustainable communities strategy prepared by the Metropolitan Transportation Commission and the Association of Bay Area Governments pursuant to SB 375. In that lawsuit, filed in July, PLF claimed that – hold on to your hats – MTC and ABAG should have included in the EIR an alternative proposed by PLF's client, Bay Area Citizens. The BIA's Bay Area affiliate filed a separate lawsuit with a variety of separate CEQA arguments. Not surprisingly, the PLF lawsuit has a more ideological, value-laden tone than the BIA lawsuit. It calls One Bay Area "wrongheaded" and repeatedly calls the approved scenario "low-performing," meaning that the proposed rail transportation projects will cost a lot of money without generating very many riders. Claiming that One Bay Area should have discounted emissions reductions from the Pavley bill and other state measures before crafting the land use scenario, the lawsuit claims: "The upshot of the Final Report's use of a higher-than-actual greenhouse gas baseline is to create the false impression that especially draconian land-use measures are needed to meet the region's SB 375 targets. Thus, the Final Report's approach is irreconcilable with CEQA' s requirement that the environmental baseline normally constitute existing physical conditions, not a hypothetical condition or legal fiction." The lawsuit's bottom line is that MTC and ABAG should have considered Bay Area Citizens' alternative, which included such action as "insist that local communities be informed of the public subsidy costs of affordable housing before the assignment of regional housing needs assessment allocations" and "insist that local communities be informed of the unfunded mandates involved with the obligation to provide affordable housing before that obligation is accepted."  To be honest, the lawsuit overall is pretty repetitious. But the bottom line is clear: ABAG and the MTC didn't use CEQA to do what the Pacific Legal Foundation wanted, so PLF sued. The BIA lawsuit against One Bay Area is more reasoned – not surprising considering the lead counsel is Mike Zischke of Cox, Castle & Nicholson, probably the state's most skilled CEQA lawyer on the development side. (Though it's true that Zischke was also the plaintiff's lawyer in the "CEQA-doesn't-apply-to-CEQA" case.) Zischke's lawsuit claims that MTC and ABAG basically didn't follow CEQA in adopting One Bay Area. The lawsuit claims that the agencies diligently followed CEQA up to a point and then – caving to environmentalist pressure to limit housing in the Bay Area – essentially adopted a plan before doing the environmental impact report. The adopted plan, BIA claims, will require the exporting of 100,000 units of housing out of the Bay Area to the Central Valley and other locations. This last lawsuit at least has some logic to it. CEQA practitioners often struggle about the project level versus the plan level. At the project level, obviously a development project in a particular location is going to have some impact on that location. But at the plan level, it should be possible to examine the relative impact of development at different locations. If Plan Bay Area doesn't plan for enough housing, that'll push the housing elsewhere, and that'll have an environmental impact.  That argument, of course, can lead to the eternal chicken-and-egg argument that seems to afflict CEQA: Does more housing supply respond to demand, or does suppressing supply suppress demand? These questions are almost impossible to answer, which is one of the reasons why CEQA analyses can be so frustrating. Which, of course, raises the bottom-line question: If the building industry and property rights advocates are so frustrated by CEQA's bottomless-pit structure, then why do they keep trying to use it so aggressively?  In a way, I suppose, it's kind of like campaign finance: If you're going to reform campaign finance, you have to win election and re-election to public office, and that means you have to raise a lot of money under the system you want to reform. Similarly, I guess, if you want to try push the building industry's agenda in the regulatory maze that is California planning, you have to use whatever tools are available to you – even if you are simultaneously trying to reform or kill those same tools over in Sacramento. Still, it doesn't seem to me that "kill CEQA before I use it again" is a strong lobbying argument.

Will CEQA ever give infill development a break? SB 731 – now pending in the Assembly – is intended to do just that. But in the latest twist in an increasingly long-running tale, the bill has now been amended in a way that could push CEQA significantly in the direction of assessing the socioeconomic impact of infill development. On Monday, Senate leader Darrell Steinberg took some amendments to SB 731 and Assembly Speaker John Perez referred it back to the Assembly Natural Resources Committee.  The major change calls on the Governor's Office of Planning & Research to do a study on economic displacement of residents in infill neighborhoods and revise the CEQA Guidelines based on the results. The economic displacement idea was first raised two weeks ago in a letter from ClimatePlan, Greenbelt Alliance, and the Planning & Conservation League.   "While infill development, done right, can greatly improve the quality and livability of a neighborhood and the health of its residents," the letter wrote, "new development can also result in both physical (direct) displacement and economic(indirect) displacement. Unchecked, the displacement of residents and neighborhood-serving businesses thatc an no longer stay in a neighborhood because of escalating rents/property values brought on by new development, can have significant harmful environmental, social, and health equity consequences. We believe these impacts should be fully incorporated into the CEQA framework. " In the past, the state has explicitly rejected moves toward assessing the socioeconomic impact of development via CEQA – in contrast to New York, whose CEQA equivalent moved in that direction a long time ago (but is not as frequently used on private development). These amendments reveal the tension among liberal Democrats in reforming CEQA. On the one hand, they want more infill development. But on the other hand, they can't let go of the idea that infill development will be bad for people who currently live in urban neighborhoods. In an interesting blog posted on Monday, High Speed Rail blogger Robert Cruickshank argued that the opposite is true – that a lack of infill development can sometimes lead to gentrification too. "As San Francisco proves, the opposite is the case. Rules that limit or block infill development cause rents to skyrocket, since potential renters are all fighting over a small, finite set of available units," he wrote.  If OPR's study led to actual changes in the CEQA guidelines requiring consideration of socioeconomic issues, it would broaden CEQA's scope considerably in infill locations – perhaps requiring different analysis, rather than less, which was the original goal of Steinberg's bill. Meanwhile, on Monday, the Assembly passed SB 1, which would partially revive redevelopment. It seems headed for Gov. Jerry Brown's desk, though Brown vetoed an identical bill last year.

As the California legislative session winds down, both CEQA reform and the revival of redevelopment appear headed to Gov. Jerry Brown's desk. Both bills are being carried by Senate leader Darrell Steinberg, D-Sacramento. They both passed the Assembly Appropriations Committee last Friday. The redevelopment bill – SB 1, virtually unchanged since last spring -- passed 12-5, presumably on a party-line vote. The CEQA bill – SB 731, the subject of endless wrangling in August – passed 17-0. The redevelopment bill would permit cities to use tax-increment financing in limited circumstances. Counties and other local taxing entities would have to agree; school tax-increment would not be included; and the money could be spent only in transit priority areas, walkable locations, and clean-tech districts. Brown vetoed a virtually identical bill last year. Steinberg thought he had consensus on the CEQA bill last spring, but that appeared to fall apart at the end of July when both CEQA reformers and CEQA defenders found fault with the compromise. Later in August, the CEQA Works – the CEQA defenders – got bent out of shape a second time in response to a set of amendments proposed by  Brown's Office of Planning & Research, some of which were incorporated into the bill by Steinberg. OPR's proposals included a proposal that clarifying that parking and exceedance of level of service standards do not, in and of themselves, represent a significant impact under CEQA. The OPR proposal also includes a suggestion, which Steinberg accepted, that CEQA settlements be approved by trial judges and then only when certain findings can be made. The CEQA Works letter of Aug. 19 zeroed in on the judicial approval of settlements in particular. Acknowledging that the provision may be intended to discourage settlement illegitimate CEQA lawsuits, the CEQA Works letter claimed the provision represented "a solution where there is, in fact, no evidence of a problem." However, the CEQA Works letter to did not discourage Steinberg from accepting many of the proposed amendments; not did it prevent the 17 members of the Appropriations Committee – including 12 Democrats – from approving it.

Recently, economist and entrepreneurship expert Carl Schramm announced a discovery in the pages of Forbes.com: "the practice of city planning has escaped reality." Planners don't see the big picture. They don't understand economic growth. They've unleashed upon us scourges like live-work lofts, fire stations, and bloated pensions. Planning thus joins a small, list of obscure fields that could benefit from self-analysis and reform. To my reckoning, that list includes finance, medicine, government, journalism, technology, religion, and everything else short of Pet Sounds .  You need only take a few glances at major American cities and suburbs to know that there have been lousy plans and, by extension, lousy planners for a very long time. Most every cul-de-sac and downtown surface parking lot indicates as much. Schramm's criticism, as that of an entrepreneurial evangelist looking create business-friendly, is undeniably valuable.   How critical is Schramm? Quite. In "It's Time for Business to Adapt a New Model," he accuses planners of being self-serving and of writing many general plans good only to line the wallets of planning firms and architects. In reading a handful of cities' plans – which cities? we'll get to that in a minute – he and his graduate business students at Syracuse University concluded that planners are blind to the forces of demographics and macroeconomics.  Schramm writes: measures of city health that are clearly more faddish than practical. None set a goal of full employment or even mentioned unemployment.  Poverty was a missing word.  What discussion existed regarding economics was confined to making a specific kind of neighborhood, often called an arts district, to provide propinquity for the city's "creative" population.  If a link to the economy is mentioned it usually is a passing reference to new and small businesses that would grow up if, again, the physical environment was engineered in a specific way.  In short, writes Schramm, planners who believe that their job is merely to create a functioning built environment are shirking their duties as captains of economic development and reduction of poverty. They "have no idea of how the complexities of dynamic economies actually are sparked to life." He also accuses planners of ignoring demographic projections; he writes, "none of the plans ever spoke of what the city's population might be at the end of the planning period!" Schramm would replace all of those arts districts with facilities for "scale production…(which) is the only path to growth and urban futures that hold the potential to restore communities" – as if American cities will be saved by Chrysler and U.S. Steel. Planners' Hidden Agenda As debatable as Schramm's conception of the 21 st  century economy may be, many of his concerns are so obvious as to be implicit in the work of many contemporary planners. When, for instance, New Urbanists speak of vibrancy and street life, they're not assuming that everyone is strolling around because they're unemployed. When developers build dense mixed-use developments, they do so in the hope that thriving businesses will fill those ground floors (and that the residents above will have more disposable income because they're spending less on cars). When progressive planners talk of making cities "better," they do so with the conviction that improvements in quality of life lead to economic prosperity -- and vice-versa. Plenty of contemporary plans address exactly the concerns that Schramm raises. Take Santa Monica's relatively new, much-admired general plan , for instance: it's chock-full of rhetoric about stoking the local economy and supporting local businesses. Same for San Jose's new Envision 2040 plan. But those are just two examples from two cities. Planners certainly aren't enlightened enough to pursue that line of thinking on a really large scale, are they? As it turns out, they are.  California's Senate Bill 375 , for instance, requires cities to do exactly what Schramm and his students advise. A huge component of SB 375 is based on demographic projections, with the goal of reducing per-capita greenhouse gas emissions according to targets for the years 2030 and 2050. It addresses the relationship between the location of jobs and that of housing – a key factor in cultivating a healthy workforce. The models that the Air Resources Board and the state's "Big Four" metropolitan planning organizations are using to meet these targets incorporate piles of data to this effect. Under SB 375, every metropolitan planning organization (MPO) must publish and abide by a Sustainable Communities Strategy (SCS) and every city in those planning areas has to address the SCSs in their plans. Granted, SB 375 isn't expressly intended to promote business -- it has far more important goals -- but it most certainly takes the state's economic climate into account.  Anyone worried about demography might also check out California's Regional Housing Needs Assessment program, designed to ensure that every city in the state absorbs its fair share of new low- and moderate-income housing. (Whether cities follow these rules usually depends on politics, with conservatives often opposing growth.) Most sensible cities not only plan housing accordingly; they also plan for amenities and services. So if a city expects a population increase in a certain neighborhood, it might also add a fire station or a park. Schramm, however, sees fire stations as symbols of cronyism and waste: "every plan discusses the importance of new buildings for fire station," he writes, disapprovingly. Maybe the problem on the local level is that planners are fixated on the arts, to the detriment of other economic activities.   In many places, these industries probably play a smaller role in today's urban economies than boosters like Richard Florida and Elizabeth Currid-Halkett would like to admit. Then again, the arts is often shorthand for a much larger, and vibrant, creative industries, ranging from entertainment, to video games, to interior design -- but not, alas, to "scale production." But the reason that the arts have become an avatar for a new wave of urban planning is that urban forms that are good for the arts and artists may also be good for all sorts of other industries and residents. What's good for Banksey may be good for America.  Schramm also lambasts these plans for not calculating the costs of cities' pensions, claiming "not one of the plans discussed…the unfunded costs of pensions for retired and current public servants." Why not tell planners to cure cancer too?  While pension obligations gravely threaten some cities, I'm not sure why they are planners' problems or how planners would solve them. Conflicting obligations within a city -- between, say, building a nicer city and paying long-term debts -- need to be worked out at the level of city government. Then again, Schramm isn't a big fan of any sort of government. If planners have their way, "government…(will have) control over all aspects of the built environment." He doesn't mean that in a good way.  Shining Exemplars How did Schramm and his students reach these conclusions? Is the state of planning as bleak as they imply? Of course it is – if you base your conclusions on Syracuse, Stockton, and…wait for it…Detroit. (Schramm does not name these cities in his Forbes piece, but he was candid enough to reveal them to me via email.) Anyone who knows anything about contemporary American urbanism already know what I'm going to say. Judging the planning profession according to some of America's most famously destitute (and bankrupt) cities is like judging lending by Countrywide, finance by Lehman Brothers, international banking by the Libor scandal, and entrepreneurship by the shuttered frozen yoghurt shop down the block. Schramm's students might as well have thrown in Atlantis too.  If Schramm had presented his Forbes piece explicitly as a study of cities that have run aground, and his Forbes editors had titled it as something like "Bad Planning and Urban Downfall," then he might have ended up with a compelling, nuanced commentary about the common traits that poorly planned cities share. The graduate course at Syracuse that gave rise to his article is called "Fast Cities / Failed Cities," so Schramm can clearly distinguish between good and bad. His students, though, seem to have taken a cursory, one-week look at a complex, generational issue and then rendered a sweeping decision that vilifies an entire field. Regarding Detroit in particular, Schramm presents a curious argument. He writes that Detroit's general plan is a failure because "Detroit remains hopeful that someday 2.3 million people will live there once again." First of all, a lousy land use plan is the least of Detroit's worries. Secondly, even if Detroit's general plan  does  refer to a target population of 2 million, that just means that the document disagrees with literally every single member of the greater planning field. That's probably to be expected from a city that elected a criminal as its mayor. Fortunately for Schramm, if he thinks that planners should figure out how to plan for a smaller Detroit, then he should delighted.  That's exactly what planners are doing. (Whether they can pull off such a monumental task, and generate the political will and financial resources to implement it, is another story.) Job Creators I have no doubt that Schramm would give great advice to an entrepreneur, such as the mom and pop who are setting up a small business, whether on a Main Street, in a mini-mall, or in a co-working space in a converted flour mill. He would likely fight like crazy to help that business succeed. He seems like that type of guy. I'm also willing to wager that the first thing he would tell clients is to be true to their vision no matter what impediments lie in the way.  Schramm surely knows that no entrepreneur, anywhere, creates his or her own competitive landscapes -- nor their literal landscape. To imply that any plan or planning decision could undermine ingenuity, hard work, and guts is an insult to the spirit of entrepreneurship. The best entrepreneurs know how to read existing conditions, adapt to changing circumstances, and anticipate what lies ahead. The availability of one kind of office space or another should not dissuade them. Of course, Schramm is right that to say that planning and business are interconnected. But it's a two-way street. Schramm overlooks the very real role that business plays in creating plans (and, often, in circumventing them). I can't imagine a city in which the business community does not have its fingerprints all over the general plan. Many chambers of commerce have lobbyists dedicated to planning and development. So, if a plan isn't business-friendly, whose fault is it? These days, it takes a real lack of imagination to disregard the ways that a pleasant urban environment can stoke economic development. But if business groups are as skeptical as Schramm is, then there's a raft of literature  -- dating back at least to Jane Jacobs' The Economy of Cities – that suggests that cities built on the principles of smart growth will be friendlier to business.  Density creates more interactions, makes labor and customers more accessible, and can make people infinitely happier and more energized. It's not a coincidence that some of the densest cities in the world are also some of the most prosperous cities in the world. Even so. Whether you're in Hong Kong, Tokyo, or San Francisco -- or not to mention San Bernardino, Riverside or Stockton -- no one ever said that business was easy. And neither is planning.

The First District Court of Appeal has batted down an attempt by the California Building Industry Association to turn CEQA on its head, saying that the passage of significance thresholds is not a project under the environmental law. In so doing, the court concluded that an environmental analysis is not required to examine the environmental impact of the standards used to conduct environmental analysis and assess environmental impact.  In other words, the appellate court ruled that CEQA does not apply to CEQA – at least not in this case. In CBIA v. BAAQMD , CBIA filed a lawsuit under the California Environmental Quality Act after the Bay Area Air Quality Management District adopted new significance thresholds for several pollutants, including a significance threshold for greenhouse gas emissions. The GHG threshold for development projects is 1,100 metric tons of carbon dioxide equivalent or 4.6 metric tons per service population per year. CBIA sued, arguing most importantly that the adoption of significance thresholds is a project under CEQA and therefore should have triggered a CEQA analysis. Alameda County Superior Court Judge Frank Roesch ruled in favor of CBIA, concluding that significance thresholds are "a discretionary activity directly undertaken by a public agency which may cause a reasonably foreseeable indirect physical change in the environment." He agreed with CBIA's claim that the evidence in the record supports the argument that the Thresholds "might discourage infill development, encourage suburban development or change land use patterns. . ." The First Appellate District, Division Five, reversed Roesch's ruling, on two grounds. First, the court concluded that the CEQA Guidelines already lay out a process for public review of significance thresholds and a CEQA review – with an initial study and possibly an environmental impact report – would be duplicative. And second, the court said that there was not enough evidence in the record to support CBIA's contention that the thresholds would not discourage infill development. On the first point, Justice Henry Needham, writing for a unanimous three-judge panel, cited Guidelines Section Section 15064.7(b), which lays out the process by which thresholds should be adopted. "The District drafted proposed revised thresholds of significance in 2009, utilizing the scientific and administrative expertise of its staff," Needham wrote. "It then conducted public hearings, outreach, and workshops for more than a year. The administrative record, which contains staff reports, scientific reports and protocols, analyses of the effect the proposed thresholds would have on various projects, letters from interested parties, responses by the District, transcripts of hearings, and records from various workshops, is in excess of 7000 pages. CBIA and other groups with similar concerns about the proposed thresholds and their effects participated in that process. The District took the comments of such groups into consideration before adopting the?2010 Thresholds." Requiring the air district to also conduct a CEQA analysis "would result in a duplication of effort, at taxpayer expense and to little if any purpose." Needham also concluded that the record did not prove that adoption of the significance thresholds would discourage infill development or encourage sprawl. "Teasing out the extent to which undefined future projects might be built or abandoned as a result of the Thresholds, and the extent to which land development projects might be relocated to a more suburban location, would require a prescience we cannot reasonably demand of the District. No public agency other than the District is committed to using the Thresholds, and the District does not act as the lead agency for the type of residential and commercial projects CBIA alleges will be displaced," Needham wrote.

Two weeks after it was left for dead, SB 731 – the bill to reform the California Environmental Quality Act – unanimously passed the Assembly Local Government Committee Wednesday. The bill was amended last week to ease parking requirements on infill development but it was unclear whether that would be enough to satisfy the Assembly.  However, Wednesday's 5-0 vote suggested that the bill is likely to become law this year despite business opposition. After it passed the Senate unanimously in May, SB 731 ran into problems when a business group – the CEQA Working Group – switched from support to opposition and Assembly Speaker John Perez said more analysis was needed.  On Wednesday, Senate leader Darrell Steinberg – who is carrying the bill – had tough words for the CEQA Working Group. He was quoted in the Los Angeles Times as saying: "You want to move a mile, we will move a mile. You want to move one hundred miles in ways that may not be good, that's not going to happen with this bill."  Capital Public Radio quoted him with even blunter words: ""If there is any expectation – and I know there is a big expectation – that my bill will include the lengthy and ever-changing list that the CEQA coalition seems to want, you're gonna have to find another author, another year, another time, another way to do this."

At a glance, last week's California Supreme Court ruling in the Expo Line CEQA case laid down a pretty clear rule: Lead agencies can use a "future baseline" for environmental analysis, but they have to be very careful in documenting the reasons why. L.A. Metro erred in using a "future baseline," but fortunately for the agency the court concluded that it didn't make any difference to the analysis. A deeper look at Neighbors for Smart Rail v. Exposition Metro Rail Construction Authority , however, reveals a deeply split court that apparently almost went the other way – and that could have significant implications in the future for the way the California Environmental Quality Act unfolds in future court cases.  The court split 3-3-1 in the case. Justice Goodwin Liu provided the deciding vote on the future baseline question – but he didn't agree with the plurality decision on the question of whether using the future baseline made any difference in the outcome. And a close read of the two main opinions – the plurality opinion written by Justice Patricia Werdegar and the main dissent written by Justice Marvin Baxter, both of which got three votes – suggests that Baxter's was originally written as the majority opinion and Werdegar's as the dissent. Baxter's dissent begins with a broad and sweeping description of CEQA – typical of a majority opinion – while Werdegar's plurality contains many refutations of Baxter's points, as a dissent typically does. Had Baxter's reasoning carried the day, lead agencies would have virtually unlimited discretion in deciding what kind of baseline analysis to use. Why is this important? Because we've entered a new period of CEQA court rulings focused on narrow, technical decisions that have enormous consequences on the size and scope of the analysis.  For the first 20 years after CEQA was passed – from 1972 until 1990 – the courts consistently expanded CEQA's scope so that more and more issues had to be analyzed in great technical detail, thus creating ever-expanding environmental analyses. For the next 20 years – after the California Supreme Court's New Year's Eve 1990 ruling in Citizens Of Goleta Valley, v. Board Of Supervisors, 52 Cal.3d 553, 801 P.2d 1161, 276 Cal.Rptr. 410, the courts were much less aggressive in expanding CEQA's scope – largely because Goleta Valley contained a pretty clear warning.  Now, however, we appear to have entered the CEQA's "third wave". The courts are not vastly expanding CEQA's reach, and plaintiffs know better than to push in that direction. Instead, plaintiffs are relying on narrow technical arguments to make their case – mostly about what the ground rules for the analysis are. But while the arguments are narrow and technical, the impact of the rulings is not. For example, in Ballona Wetlands Land Trust v. City of Los Angeles (2011) 201 Cal. App. 4th 455, the Second District Court of Appeal ruled that a project's impacts do not have to be measured against future changing environmental conditions (for example, sea level rise). Similarly, in last week's Neighbors for Smart Rail v. Exposition Metro Line Construction Authority, the issue was whether or not L.A. Metro erred in the way it created the baseline of analysis for traffic and air quality impacts. For those two issues – but not for others – Metro use a "future baseline" of 2030 without the Expo Line Phase 2 in place, rather than a current baseline.  In a lot of ways, this makes sense. After all, we're not talking about a development project here. We're talking about a transportation project. So, whereas you might be able to analyze a development project against current conditions – assuming that the only change is whether or not the new subdivision is built – the whole point of a transportation project is to change future conditions from what they otherwise would be.  This was persuasive to Justice Baxter and the two judges who agreed with him. TO quote Baxter at some length:  "As a major infrastructure project designed specifically to address projected long-term increases in traffic congestion and air pollution, Expo Phase 2's very operation will, over time, achieve environmental objectives and efficiencies in complete alignment with CEQA's goals of enhancing and protecting the environment in this state. The majority does not disagree that the traffic and air quality conditions in 2007 will no longer exist when Expo Phase 2 is fully operational. But despite Expo Authority's reliance on this reality as a justification for omitting an impacts analysis based on the 2007 conditions, the majority proceeds to fault the agency for failing to analyze the conditions projected to exist eight years after that date, when Expo Phase 2 is scheduled to begin operations in 2015.  "The unfairness of today's decision is stunning: the majority finds an abuse of discretion based on the lead agency's failure to use a baseline that is nowhere mentioned in the CEQA statutes, regulations, or case law, and that no agency or member of the public ever advocated in the administrative review process below." But it wasn't persuasive to the majority. Quoting Werdegar's opinion – which got four votes: "Projected future conditions may be used as the sole baseline for impacts analysis if their use in place of measured existing conditions—a departure from the norm stated in Guidelines section 15125(a)—is justified by unusual aspects of the project or the surrounding conditions.  "That the future conditions analysis would be informative is insufficient, but an agency does have discretion to completely omit an analysis of impacts on existing conditions when inclusion of such an analysis would detract from an EIR's effectiveness as an informational document, either because an analysis based on existing conditions would be uninformative or because it would be misleading to decision makers and the public." This last bit of reasoning – that existing conditions can only be omitted if uninformative or misleading – appeared to be especially infuriating to Baxter. "It is unclear," he wrote, "how an agency might show that an existing conditions analysis would be "uninformative" or "misleading," without actually conducting such an analysis." Baxter concludes that the majority's decision will increase the complexity of CEQA analysis significantly and will lead to further conclusion and delay for both public and private projects in California. He may well be right. One can't help but notice that Baxter's reasoning is pretty clean and simple, while Werdegar's – while not tortured – is nevertheless complicated. As Baxter says, it's hard to know exactly how to follow the bouncing ball.  When CEQA's critics complain that the law is unnecessarily complicated, this is the kind of thing they're talking about. At its core, the question in the Expo Line CEQA analysis is simple: Will the construction of a major light-rail line benefit the environment or harm it? The Neighbors for Smart Rail ruling deals with the question of "compared to what" – and provides, , unfortunately, a rule that gives CEQA critics even more ammunition when they say the law is unnecessarily complicated.