SB 375 has left a lot of public commentary in its wake, but none more hilarious than a hostile editorial in the reliably libertarian Orange County Register , which refuses to believe that anyone in the homebuying marketplace would ever want to purchase anything other than a single-family house on a large lot. The editorial -- titled "Want to live in a condo by the train tracks?" – provides a few chuckles in the way it characterizes SB 375's impetus (calling smart growth a "highly controversial and authoritarian concept") and outright guffaws in the way it mischaracterizes what the law actually does. The editorial claims: "SB375 will transfer decisions about local developments from property owners and local cities to state environmental officials." (In fact, the law specifically states that local land-use authority is not being usurped.) Indeed, the Register makes Tom McClintock's remarks on the same topic seem measured in comparison. Most amusing of all, however, is the way the Register conflates the free-market idea of what people want with the socially conservative idea of what people should want. Simply put: Despite its supposedly free-market orientation, the Register can't imagine a world in which some people might answer their derisive question –"Want to live in a condo by the tracks?" – by saying yes. The Register 's underlying assumption is that everybody wants to live in a single-family house on the largest possible lot. Left to its own devices, the market would produce only single-family subdivisions and nothing else. Therefore, the construction of anything other than single-family houses must, ipso facto , be the result of government coercion rather than market choice. In fact, the opposite is true – especially in a crowded and expensive place like Orange County. Left to its own devices, the market would probably produce more high-density housing, because a significant portion of the market either does not want or cannot afford a traditional suburban lifestyle. Meanwhile, local government regulation – zoning -- often interferes with the market by ensuring low-density development in many areas where higher-density housing would succeed in the marketplace. This is especially true in affluent conservative suburbs, where homeowners use regulation ferociously to protect their turf. In recent years, two Orange County cities -- Mission Viejo and San Juan Capistrano -- have blocked higher-density housing proposals because of public opposition. This is part of the reason SB 375 is necessary. But this is an inconvenient truth for the Register and the rest of the libertarian-leaning anti-anti-sprawl crowd. It seems to me that these folks – including such pundits as Randall O'Toole and sometimes even Sam Staley , who I've worked with and like – are so tied to conservative social values that they can't tell the difference between what people want and what they should want. In fact, however, conservative social values and the free market sometimes part. It may be that social conservatives believes that everyone should live in a traditional family setting, and to them this may well mean everybody should live in a traditional single-family suburban neighborhood. But that is not the same as saying that this is what the market actually demands . Even in Orange County, the homebuying (and renting) public is more diverse than ever before. There are singles and childless couples (some same-sex) and empty-nesters, many of whom prefer and can afford a more suburban lifestyle. There are vast numbers of families with modest incomes who might aspire to a suburban lifestyle but will never be able to afford it. There are even a growing number of working-class and middle-class families who are unwilling to endure the long commutes required to have a traditional suburban lifestyle in Southern California. All these different groups put together represent a large portion of the home market – maybe not a majority, but probably 30-40% at least. And even if all these folks wanted single-family homes in Orange County, the market couldn't accommodate them. Land there is so expensive now that most developers would choose to build higher-density projects; maintaining a single-family landscape would require enormously heavy-handed government regulation. And even if all new housing in Orange County consisted of detached single-family homes, those houses built would cost millions of dollars each. (Even in the recent real estate crash, the median price of a single-family home in August was $959,000.) That's far beyond the reach of most of "the market". It would be one thing for the Register to argue, Peter Gordon - style , that government has no business regulating land use, so zoning should be abolished and let the chips fall where they may. That's an intellectually honest libertarian position and I can respect that. But it is unfair to smart growth advocates – and to the idea of libertarianism – to suggest that the free market should be unshackled only for those who agree with the Register 's social values – and not for anybody else. -- Bill Fulton

While it seemed as if Gov. Schwarzenegger vetoed every land use bill besides SB 375, he did in fact sign several pieces of legislation. Although some bills are minor in nature, some pieces of legislation make important changes to aspects of the general plan law, authorize funding for courthouses and parks, and even ease development of a mixed-use project on the Sacramento waterfront. Here's a look at some of the more important land use bills that the governor signed: • AB 31 (de Leon). Allocates $400 million from Proposition 84 parks money for a competitive grant program targeted at park-poor communities. • AB 1358 (Leno). Requires cities and counties to include in circulation element updates provisions for "complete streets." The requirement is effective with updates adopted after January 1, 2011. "Complete streets" are those that provide for bicyclists, pedestrians, disabled people and others besides motorists. The bill also requires the Governor's Office of Planning and Research to update the General Plan Guidelines. • AB 1451 (Leno). Extends an existing property tax exemption for new construction of solary energy systems and solar power generation projects until 2016. The bill enjoyed strong support from utilities and alternative energy supporters, but it was opposed by Kern County supervisors. A $1 billion, 250 megawatt solar energy facility is planned for eastern Kern County. • AB 2026 (Villines). Authorizes the California Department of Parks and Recreation to sell two acres on the Sacramento River waterfront to the City of Sacramento, and exempts the transaction from the California Environmental Quality Act. The property is essential for "The Docks" project, which proposes 1,100 housing units and 500,000 square feet of office and retail space along the river just south of the Tower Bridge. • AB 2069 (Jones). Tightens the no-net-loss provisions to prevent decreases in potential housing sites. Some jurisdictions zone land for mixed-use development, and count potential housing development in those zones in their housing element's inventory of available residential sites. This bill requires jurisdictions that approve commercial development in these zones to take steps to ensure that adequate sites remain available to meet the jurisdictions' fair-share housing obligations. The governor vetoed a similar bill last year. • AB 2280 (Saldaña). Clarifies recent changes to the density bonus law. The density bonus law permits development of up to 35% more units than zoning allows if a certain percentage of units are available to low-income households. As originally introduced, AB 2280 overhauled the law. But the bill was watered down to the point where it makes mostly minor, technical amendments to the law in order to prevent disputes between developers and local governments over the size of density bonuses and other incentives. • AB 2494 (Caballero). Places $200 million of Proposition 1C park funding with the Department of Housing and Community Development. The bill settles a dispute over whether HCD or Parks and Recreation should allocate the money. Housing advocates argued that HCD should be in control because the funding is supposed to be tied to production of affordable housing units. • AB 2921 (Laird). Amends the procedures for rescinding Williamson Act contracts and for addressing contract breaches. Five years ago, the Legislature authorized the Department of Conservation (DOC) to identify and respond to breaches, which typically result from development of protected agricultural land. This bill modifies the DOC procedures. • SBX2 1 (Perata). Directs existing bond funds to programs and projects intended to stabilize the Bay Delta and increase water supply reliability through projects other than new dams. • SB 187 (Ducheny). Authorizes implementation of a pilot project for Salton Sea restoration. The state budget includes $17.8 million for the project (see CP&DR Environment Watch , September 2007 ).  • SB 732 (Steinberg). Creates the Sustainable Communities Council to coordinate state programs and allocates Proposition 84 monies to fund sustainable community planning. • SB 1065 (Correa). Allows cities and counties to use revenue bonds to refinance mortgages on owner-occupied homes for households earning up to 150% of median income. The League of California Cities and the California Association of Realtors were among the supporters. • SB 1407 (Perata). Authorizes the sale of $5 billion in lease-revenue bonds to fund courthouse construction, renovation and repair. The bill also raises criminal and civil fees and fines to pay off the bonds.   • SB 1681 (Battin). Overhauls and streamlines the process by which the Department of General Services (DGS) disposes of surplus state property. Sponsored by DGS, the bill provides local governments and nonprofit housing developers with easier access to surplus state lands. - Paul Shigley

While Gov. Schwarzenegger signed the high-profile SB 375 , he vetoed nearly every other land use bill of consequence this year. Legislation regarding financing, fire safety, school fees, the California Environmental Quality Act and other matters all failed to escape the governor's red pen. A substantial number of the bills received the following veto message: "The historic delay in passing the 2008-2009 state budget has forced me to prioritize the bills sent to my desk at the end of the year's legislative session. Given the delay, I am only signing bills that are the highest priority for California.  This bill does not meet that standard and I cannot sign it at this time." The curt message – some call it petulant – has not exactly won friends among bill sponsors, lawmakers, staff members and lobbyists who put hundreds of hours into pieces of legislation.   Several bills that the governor vetoed – whatever the reason – deserve highlighting. I thought that AB 2173 (Caballero) was the sleeper bill of the two-year legislative session. The measure was complicated, but essentially it would have eliminated a number of prerequisites for school districts that want to charge "Level II" development impact fees. The Coalition for Adequate School Housing sponsored the bill, and the California Building Industry Association did not oppose it, which was shocking because Level II fees are often two to three times the amount of the state-established Level I fees (now at $2.97 per square feet for new residential construction). At a time when everyone wants to encourage construction, passage of this bill seemed odd. Maybe the CBIA knew the governor would not sign AB 2173. And he didn't. It was one of those bills that was not the highest priority for California. The governor vetoed two finance bills that would have had important, although indirect, implications for land use. Senate Bill 1293 (Negrete McLeod) and SB 1221 (Kuehl) were basically sunshine bills. The former would have imposed specific transparency and accountability requirements on joint powers authorities (JPAs) that provide tax-exempt "conduit financing" for private development projects. The latter bill would have changed various requirements that now cause hospitals and health systems in need of money for new facilities to bypass the California Health Facilities Financing Authority (a state agency) in favor of the JPAs that lack equivalent oversight. There was no stated opposition to either bill. Still, the governor deemed SB 1293 not a priority, and said SB 1221 would burden nonprofit health facilities. The vetoes set off State Treasurer Bill Lockyer, who had endorsed both measures. Lockyer concluded an angry three-page letter to Schwarzenegger by saying he was "more than usually displeased and downright angry with what has become of two very important public policy reforms as a result of action by you and your staff." Also failing to survive was AB 2594 (Mullin) , which would have authorized redevelopment agencies to use non-housing tax increment revenue to refinance or assume subprime loans at risk of default, and to acquire vacant and foreclosed homes. You might recall that when the year began, everyone was demanding that lawmakers "do something" about housing foreclosures. The California Redevelopment Association offered to play a role, but the use of housing set-aside funds was rejected by lawmakers. Still, AB 2594 permitted redevelopment agencies to get involved in foreclosures if they really wanted to. Schwarzenegger vetoed the bill, saying it would permit redevelopment agencies to reduce the amount of tax increment available for the state to take to help balance this year's budget. Really, that's what the veto message says. It's brazen – and I also think it's bogus because I don't see how implementation of AB 2594 would have reduced the state's grab of local revenues. (See this month's Capitol Update .) Other bills that received vetoes: • AB 842 (Jones). Would have change criteria for infill incentive and transit-oriented development grant funding to favor plans that reduce the growth in vehicle miles traveled. Schwarzenegger called the bill "pointless" and "duplicative." • AB 1129 (Arambula). Would have changed state grant criteria so that housing trust funds in counties of less than 425,000 people could better compete for funding. The governor said the bill would permit local governments to spend state monies without a local match. • AB 1221 (Ma). Would have permitted local officials to use property tax increment to finance bonds for infrastructure within transit village development districts. • AB1366 (Portantio). Would have required cities and counties to submit annual housing element progress reports to the Department of Housing and Community Development to remain eligible for certain housing funding.  • AB 1709 (Hancock). Would have authorized the use of Mello-Roos financing for energy efficiency and renewable energy improvements. The governor said he could not support this "fundamental shift in the purpose of Mello-Roos taxes." • AB 2000 (Mendoza). Would have allowed a city or county that exceeds production of its fair-share housing allocation to count the excess against subsequent fair-share requirements. The governor said the bill would reduce the amount of land available for residential development. While disappointing some cities, the veto pleased affordable housing advocates and the building industry.   • AB 2097 (Coto). Would have permitted Santa Clara County to use 5% of redevelopment housing set-aside funds for supportive services for extremely low-income households. • AB 2447 (Jones). Would have prohibited a county from approving a subdivision in a "very high fire hazard severity zone" or in an area where the state provides fire protection unless the county and responsible fire agency could make specific findings about fire safety and emergency services. Schwarzenegger said the bill would give the California Department of Forestry and Fire Protection an inappropriate role in local land use decisions. The veto pleased real estate interests, builders and rural counties. • AB 2939 (Hancock). Would have authorized cities and counties to adopt green building standards that exceed state standards. Schwarzenegger said the bil was "unnecessary" and went too far.  • AB 2970 (Eng). Would have required the Department of Water Resources to prepare a "delivery reliability report" for the State Water Project. • SB 68 (Kuehl). Would have made clear that a developer whose project gets approved is a "real party in interest" in CEQA litigation. • SB 974 (Lowenthal). Would have imposed a fee on cargo containers going through ports in Long Beach, Los Angeles and Oakland to fund infrastructure and mitigate air pollution. This was perhaps the top bill for public health advocates, who note that studies have determined diesel pollution from California's ports are responsible for 3,700 premature deaths a year. Long Beach Democratic Senator Alan Lowenthal, who represents the area most impacted by port pollution, had a similar bill vetoed two years but took another run this year. Still, the governor found multiple reasons to reject the measure: It would increase costs on business; Proposition 1B already provides $4 billion for improving infrastructure and mitigating ports' impacts; the bill does little for the San Joaquin Valley, through which many cargo containers are trucked. Among those who urged a veto was Alaska Governor Sarah Palin, who complained the bill would raise the cost of goods shipped to her state. • SB 1689 (Lowenthal). Would have required the Department of Housing and Community Development to submit its redevelopment audits and investigations to the attorney general and state controller for potential enforcement action. - Paul Shigley

One of my personal commitments during the last year or so to a more sustainable future is to take the train and transit whenever I travel if time and routes permit. At planning conferences during last year, eco-celebrity speakers Ed Begley, Jr. ("Living with Ed" on cable TV and a book with the same title) and Chris Balish ("How to Live Well Without Owning a Car") promoted their more eco-friendly life styles. My own experience demonstrates the danger in minimizing the difficulties of this choice for newbies like me and the work we as planners face to make transit a real option that a less committed person would try more than once � a truly sustainable lifestyle choice. None of this is news for the folks whose economic status makes transit-dependence a necessity. � The Amtrak San Joaquin has been a terrific option for business travel from Sacramento to Fresno. I work on the way and nap on the way home, neither of which is recommended while driving. If I miss the connection in Sacramento, I can drive to Stockton and catch the train there. The Amtrak station is in downtown Fresno near major public buildings, so even if I have a lot of boxes and files, it isn't any worse than the walk from the parking garage. The downsides are the lack of Internet access on the train and the unpredictable delays resulting from freight having priority for use of the same tracks that Amtrak uses. Having to transfer from train to bus on some schedules and routes is often a necessary accommodation. � Trains are also something of an acquired taste if one's travel expectations are set by air travel. The lack of cleanliness and maintenance of waiting areas and restroom facilities in bus and railway stations wouldn't be tolerated at an airport. Many train conductors and other personnel on railroads seem to be living out an image of the past heritage and culture of railroading, rather than being conscious of grooming and behavior standards prevalent in their primary competition � airlines. Eccentricity (however colorful and often amusing) seems to be the rule rather than the exception. Use of the PA system is taken as an art form rather than a means of communication. The vagaries of diction and often blaring volume make the results either unintelligible or just annoying. We're not talking about flight attendants' amusing patter or tossing little bags of peanuts around, but sharing critical information � like where to get off or make connections. � Finding the best routes and schedules for transit, especially when intermodal shifts between different agencies or operators are required to reach your destination, is very hit or miss. For example, I had an early morning meeting in Walnut Creek. I took the Capital Corridor Amtrak to Oakland the night before. The next morning I rode BART to Walnut Creek, and with a little difficulty figured out which bus route would take me to my destination. After the meeting, I was planning on returning to Sacramento on the Capital Corridor train. Although it would have been much shorter for me to catch the train in Martinez, I couldn't find the proper bus route to make the connection. Instead, I had to take BART back to Oakland and then catch a bus to the Amtrak station in Oakland. The Oakland "station" is not a readily identifiable location, but a stretch of track that runs down the middle of the street near Jack London Square. There was no signage directing me to the right platform and I wandered for several blocks in the wrong direction. Once on the train, we stopped at the Martinez intermodal station � and there was the bus from Walnut Creek that would have saved me about an hour. Unfortunately, the Bay Area transit 511 trip planner did not tell me the bus route existed. � Last year I traveled from Anaheim to the state American Planning Association conference in San Jose on an always-obliging Southwest flight. There is a convenient and free shuttle bus from the airport to San Jose's light rail line, which took me within a few blocks of my downtown hotel. Unfortunately, I couldn't figure out which stop to get off and ended up walking with my bags on a warm, muggy night for many blocks through a dubious neighborhood along the rail line. The trip back to Sacramento was more of a puzzle, because there are no flights between Sacramento and San Jose, oddly enough. I tried searching on the 511 transit trip planner, but Sacramento is not included in the destinations listed. Finally, I noted that the Amtrak Capital Corridor route extends to San Jose (who knew?) but two different departure stations were listed for San Jose. I figured out with some difficulty which bus to take from near my hotel to the correct train station, but had to wander around before I could find the right platform (again no signage). � This year I traveled from Sacramento to the CCAPA conference in Hollywood. Southwest has good service to the Glendale/Burbank airport, which is more user friendly than LAX. I chanced to meet two other planners on my flight and we chipped in for a cab (CNG fueled) to the hotel in Hollywood at a reasonable cost, although I had originally planned on catching the bus identified in the conference materials. When I went to catch the bus for the return trip to the airport, I couldn't locate the bus stop with the correct route on the corner to which I had been directed. By good fortune, two other planners (with Caltrans in Sacramento no less) who were also having difficulty finding the stop spotted the bus just in the nick of time to catch it. The bus dropped us off at the airport entrance and we walked on a very hot day with our bags all the way to the terminal without being passed by one of the shuttle busses for which there was a prominent bus shelter near the entrance. Frequency of service seemed to be a problem. � The next week I had to return to downtown LA and chose to fly to LAX. After considerable hunting, I found I could take a free shuttle from the airport to the nearest Metro station. As it turned out, this bus ride was much longer and in the opposite direction than I had expected (still it was the closest station). The automated ticketing kiosk at the Metro station was obscure about what kind of ticket I needed to purchase to get downtown. The ticket said that it was only good for the Green Line and I could see on the map that I would have to change to the Blue Line and then the Red Line to get where I needed to go. I tried to buy another ticket before getting on the Blue Line, but the only ticket the machine spit out was for the Green Line, so I gave up and rode the Blue and Red in hopes it would be OK. � The wait for the train was significant. During the first leg of the journey, it was a bit disconcerting to have three burly and well-armed Sheriff's deputies get on the train escorting a prisoner in shackles. At another point, a second prisoner was brought on. The deputies made us change seats so they could isolate the prisoner. I wasn't quite as unnerved as the nice fellow I met who had just been released from jail and who was still wearing his jail-issue dark blue paper jumpsuit and canvas shoes because it was after hours and he couldn't reclaim his own clothes and car from the impound lot until the next morning. As everyone says about transit, you sure get to meet some interesting people. � With the waiting, free shuttle and three different trains, it took me more than two hours to get from LAX to my hotel downtown. It only cost me $2.50, although if I hadn't bought the second Green Line ticket, I could have made it for $1.25. Of course, it takes less than one and a half hours flight time from Sacramento to LAX, and I could park in the ramp right next to Sac Metro Terminal A.� Sac Metro Airport doesn't have transit access, I guess in part because the airport doesn't want to cut into the parking revenue needed to pay off the bonds that were issued to build the parking garage. For my return trip from the hotel to LAX I was short on time and took a cab. The driver was great. Although it was rush hour, he got me from the hotel to LAX in less than 40 minutes. It only cost me $50.00, including tip. � As I continue in my commitment to use transit whenever possible, I'll pass along observations of the good, the bad and the ugly. Finding and riding transit is sort of like working on a bad marriage � hard, but hopefully worth the effort in the long run.� To be continued . . . � � Joel Ellinwood Joel Ellinwood, AICP, is a land use and environmental lawyer and planner based in Rocklin.

With news of yet another Wall Street icon or banking giant tumbling arriving on an almost daily basis, the Congress and Bush administration enacting a massive $700 billion bailout to prevent a complete meltdown (which is probably only the first installment), and the stock market gyrating wildly with each new shockwave, planners may wonder what all this may mean for planning practice (that is, after they finish anguishing over their own pension plan or investment portfolio).   At a session called "Development Economics for Planners" at the recent California Chapter, American Planning Association annual conference, urban economist Tim Youmans of Economic Planning Systems told planners he had shortened his presentation to one power point slide, "Check back with me in two years." That was a joke, but Youmans did opine that lenders of all types that provide the capital essential to both public and private development projects can be expected to be much more conservative and risk sensitive. Even well-qualified borrowers with sound projects will have difficulty getting credit. Tighter loan-to-value and debt-income ratios will put the squeeze on sources of capital necessary to complete project financing. Youmans and his fellow panelist quipped that they had planned to include a developer as one of the presenters, but "we couldn't find any." Wry humor aside, the current crisis reinforces the need for planners to become more economically literate and develop a better understanding of market forces and how capital markets work to provide financing for development.   Consequences for Planners Local public agencies with planning staff funded by developer application fee revenue have seen activity decline dramatically, and budget cuts and layoffs occur as a result. Projects well along in the development approval pipeline are simply being abandoned in some cases. Others that are nursed along to final approval may require permit extensions or future amendments to incorporate value engineering to reduce costs that previous inflated housing prices could support, but which are not in line with the new economic reality. Even with extensions, some projects will simply never be built. Local governments are likely to be asked to renegotiate development agreements that promised community benefits that are no longer economically feasible. Falling home values will prompt homeowners to seek reassessment of their properties to reduce their property tax burden, a move that will further reduce public agency revenues.   Core Planning Policy Issues The congressional debate resonates with themes that are core issues for planners. Markets are praised or pilloried as the reason to do nothing so that foolishness is made to suffer the consequences or as the illustration of the emptiness of the ultimate market philosophy, "greed is good." Does regulation stifle the market's ability to respond to demand and drive down costs? Is regulation and rescue tantamount to socialism? Ideological purists of all kinds have plenty of fodder for their rants, but a balanced course of action based on a sound understanding of how markets work and what they can do well, and how they can fail, will provide the most constructive policy. The crisis is in large part a result of abuse or distortion of markets. Intermediaries (brokers, attorneys, accountants, bankers) created impossibly complex investment instruments. These investments were designed primarily to insulate the intermediaries from risk or liability, while also promising the improbability of secure investments with unsustainably high returns. All was fueled by promotion of spending beyond our means.   Capital - A Scarce Resource Critical to Positive Planning Outcomes Planning without taking into account market demand and at least a rudimentary knowledge of how development is financed leads to irrelevance and futility – wasting the technical expertise of planners and the political capital of public involvement in the planning process. Surrendering to mystical claims that a project "doesn't pencil out" or unsupported arguments of financial infeasibility won't work either. With a more sophisticated understanding, planners can tailor land use and environmental regulation to reduce risk and minimize costs for desired development models, and thus be more likely to attract capital in a world where we have become increasingly aware that it too is a finite resource. Like water seeks equilibrium, capital seeks to optimize risk and return. Markets, such as carbon credit trading and transfer of development rights, can also be effective planning tools. Trading the most efficient means of reducing greenhouse gas emissions will have the most impact the quickest and can be tuned to underwrite the most broadly beneficial development and conservation goals, such as transit and compact development. Transfer of development rights can capture the windfalls that planning and zoning entitlements can create, to compensate landowners for the wipeout of their expectations, and to preserve habitat and agricultural open space.   Markets are perhaps the biggest single factor affecting planning outcomes. Plans that ignore markets, and markets that do not capture externalities (like GHG, air quality, time stuck in traffic, loss of open space) because planning has failed to effectively incorporate them both need the increased understanding and attention of planners and policymakers in the land use arena.   – Joel Ellinwood, AICP Copies of the September 23, 2008, APA-CA session presentation "Development Economics for Planners and other Land Use Professionals" by Joel Ellinwood, AICP, and Tim Youmans, along with a list of further reading and resources is available at http://www.lawyer-planner.com .

The Stockton City Council voted 4-3 to accept a settlement with the Sierra Club and the attorney general's office of a lawsuit over a general plan update and environmental impact report adopted in December 2007. The Sierra Club and state attorneys argued that the city must consider the climate change impacts of the plan, under which the city's population could double to nearly 600,000 by 2035. City officials initially resisted, saying such impacts were too speculative to consider (see CP&DR Local Watch, February 2008 ). The settlement requires the city to: • Prepare within two years a climate action plan with specific reduction targets for greenhouse gas emissions and vehicle miles traveled; • Provide incentives for development of at least 4,400 units of new housing in downtown and provide other infill incentives; • Limit outward growth until certain transit, jobs-housing, greenhouse gas emissions and other milestones are reached. • Adopt a green building program. • Approve development with better public transit and alternatives to cars. Although the attorney general's office has reached climate change settlements with several cities and counties, the agreement with Stockton "pushes the envelope," said Sally Magnani, supervising deputy attorney general. Three councilmembers opposed the settlement, saying it needed additional review. Stockton's development and business communities strongly lobbied against the agreement. In exchange for the settlement, the Sierra Club dropped its lawsuit and the attorney general's office agreed not to join the suit. The full settlement is available on the attorney general's website at http://ag.ca.gov/cms_attachments/press/pdfs/n1608_stocktonagreement.pdf . Merced County supervisors have approved a community plan and environmental impact report for one of the largest housing projects ever proposed in the Central Valley. Located on 6,200 acres of grasslands west of Interstate 5 near Santa Nella, the Villages of Laguna San Luis is proposed to contain 16,000 housing units to be built over 30 years. Specific plans still need to be adopted. A coalition of property owners has been pushing the project since the early 1990s, even though other huge subdivisions already approved in the area have gone unbuilt. Merced County officials have approved urban development in the area because it avoids the best farmland. Still, the county did have to remove 4,400 acres of the Laguna San Luis project site from the agricultural preserve. Detractors say that, although the housing tracts would be located adjacent to the California Aqueduct, there is not adequate assurance of water. There are also concerns about impacts to the rare kit fox. The California Planning Roundtable (CPR) issued a report during the California Chapter, American Planning Association conference called "Deconstructing the Jobs-Housing Balance" that says the issues involved are more complex than they are usually portrayed to be. Current and past CPR members found that statistics are not precise, and that contrary to popular belief there is no magic ratio that will provide traffic congestion relief. To better fight traffic congestion, the CPR recommends that planners emphasize the tradeoffs between housing affordability and travel costs, facilitate mixed-use, infill and contiguous development, consider congestion pricing and parking strategies, and design growth patterns that optimize transportation systems. The CPR report is available at http://www.cproundtable.org/ . Constructing a new federal courthouse in downtown Los Angeles could cost $1.1 billion – a $700 million increase from the original estimates, according to the U.S. Government Accountability Office (GAO). In a report released in mid-September, the GAO cited design delays by the General Services Administration (GSA), little interest by contractors in the original project, and the federal judiciary's inability to agree with the GSA on the scope of the project. "It is clear that the current process is deadlocked," the GAO concluded. The Central District of California is one of the busiest district courts in the country, and current facilities at the Spring Street Courthouse and the nearby Edward R. Roybal Federal Building and Courthouse in downtown Los Angeles are inadequate. Planning for a new 41-courtroom facility began during the late 1990s, and Congress authorized $400 million for the project, which was scheduled for completion in 2006. The GSA acquired and demolished a state office building at First Street and Broadway to make room for the new courthouse; however, the project has stalled. District court judges insist that operations should be housed under one roof, but the GAO found that building one large courthouse is the most expensive option. The GSA has suggested constructing a 20-courtroom facility or upgrading the Spring Street courthouse, and adding onto the Roybal building. Judges have rejected those alternatives. Less than a week after the GAO released its report, the U.S. Judicial Conference, which makes policy for the federal judiciary, approved a policy under which senior district court judges would be required to share courtrooms. That policy has the potential for reducing the size of the Los Angeles project.

In combination with the housing market crash, a water shortage has brought construction nearly to a halt in the Antelope Valley. Even if the market were to bounce back in the next year or two, it's unclear that water providers could serve a substantial number of new homes and businesses. The largest retail water provider in the area has been unwilling to guarantee water to new development since November 2007, stalling Lancaster's ambitious downtown redevelopment plan and jeopardizing proposed commercial projects and housing tracts. Meanwhile, a nine-year-old groundwater adjudication process grinds on, delaying potential groundwater banking projects. That's the bad news. The good news is that 11 local agencies have adopted the Antelope Valley integrated regional water management plan, which spells out ways that locals may stabilize, increase and make the best use of the water supply. Implementation of the plan has already begun. No one is saying, however, that carrying out the plan will solve all of the valley's problems. "The biggest challenge we have had is to try to see collaboration between local agencies and the water providers — to not step on each other's toes," said Laurie Lile, Palmdale assistant city manager. "It's been difficult to come to a consensus as to what we should be doing." Added Lorelei Oviatt, Kern County Planning Department special projects division chief, "Nobody planned for the fact that the State Water Project was not going to turn on the spigot." Located in the high desert of Northern Los Angeles and Eastern Kern counties, the Antelope Valley has been one of California's fastest growing areas. Driven largely by Los Angeles commuters seeking affordable single-family homes, the population has increased from about 100,000 people in 1970 to about 450,000 today. But the Antelope Valley is a dry place that gets only 7 inches of rainfall in an average year. The regional water plan is blunt about the situation: "The demand for water clearly exceeds even the higher estimates of currently available supplies. By 2010, the demand for water in an average year will be 274,000 acre-feet a year and by 2035 could be 447,000 AFY. … This means demand could exceed supply by 73,600 AFY in 2010 and by 236,800 AFY in 2035. The expected imbalance between supply and demand in 2035 is about the same as currently available supplies." How did the situation become so dire? The answers are multi-faceted but stem largely from a misapprehension about water supply and from a lack of cooperation among the numerous stakeholders. As a result, banking of water in aquifers during water years — a common practice in the San Joaquin Valley and parts of Southern California — has not begun in Antelope Valley. The Antelope Valley-East Kern Water Agency (AVEK), the area's largest water wholesaler, estimates the area could have captured 300,000 to 400,000 acre-feet of water from the State Water Project since 1992 had water banking facilities been available. In 1999, Diamond Farming filed a lawsuit asserting its rights to pump groundwater from under its East Antelope Valley fields. Bolthouse Farms, which combined with Diamond provides about 90% of the country's carrots, followed up with its own suit, as did other farmers, water suppliers, special districts, cities and landowners. The litigation is now in one large adjudication proceeding in Los Angeles County Superior Court that could ultimately result in specific allocations for specific entities. However, adjudication proceedings can last for decades – a proceeding for the Mojave River Valley took about 40 years – so some people are hoping a settlement is possible. Rosamond Community Services District (CSD) General Manager Jack Stewart is not hopeful, though. "There is major disagreement between the water pumpers and the agricultural interests. They are very far apart," he said. Agricultural interests, government agencies and individual property owners have been pulling about 150,000 acre-feet of water out of the ground every year, according to recent estimates. The sustained yield is often cited as 70,000 to 80,000 acre-feet. Farmers, however, reject the sustained yield figures and say they have the right to continue pumping at historic levels; some even argue they should be able to sell their "excess" water to the highest bidder. Meanwhile, land subsidence has started occurring in parts of the valley. The contentious groundwater situation has created reluctance over water banking because the agencies fear they might not be able to draw back all of the water they put into the ground. Still, creation of a groundwater bank is a high priority in the regional water plan, and the Rosamond CSD, Los Angeles County and other entities are prepared to start banking water — just as soon as some becomes available. That might not be anytime soon, as deliveries from the State Water Project continue to shrink. The Antelope Valley-East Kern agency supplies water to a number of retailers and also to agricultural and industrial users. AVEK's biggest customer is Los Angeles County Waterworks District No. 40,which serves portions of the cities of Lancaster and Palmdale, as well as unincorporated territories. AVEK owns rights to 141,400 acre-feet from the State Water Project. According to the agency's 2005 urban water management plan, AVEK expects to receive about 70% of that allocation most years. However, consecutive dry years in Northern California combined with a court-ordered reduction in pumping from the Bay Delta to protect the endangered Delta smelt are drastically cutting into State Water Project deliveries (see CP&DR Environment Watch, February 2008). Russell Fuller, AVEK general manager, recently predicted the agency would receive only 10% of its allocation in 2009. Recognizing the situation, Waterworks District No. 40 last November stopped issuing "will-serve" letters to builders, and large projects that must prove a long-term water supply, whether from District No. 40 or elsewhere, have stalled. "There is no one," said Rosamond CSD's Stewart, "that is issuing will-serve letters in the Antelope Valley currently because no one knows whether they will have enough water." "We have been severely hurt in the building industry – in the housing and the retail and the commercial sectors," said Gretchen Gutierrez, executive officer of the Building Industry Association of Southern California's Antelope Valley Chapter. "We have no water in the valley. For nearly a year, we have been shut down. It's having an economic impact." The connection between land use planning and water management in the Antelope Valley has not always been strong, in part because the cities of Palmdale and Lancaster — which collectively house about two-thirds of the valley's 450,000 residents — do not provide water service. But the cities were eager participants in the regional water planning process and appear willing to assume larger roles in solving the water shortage. Palmdale has begun reconsidering its design standards, building codes and site layout requirements, Lile explained. The city, for example, may soon prohibit the installation of turf in the front yard of new houses. The city also cut its own water use by 31% this past summer. Officials are willing to reconsider the city's predominately low-density land use pattern. But it did not help, she said, when the Southern California Association of Governments directed Palmdale to plan for 17,000 units during the 2006 to 2014 regional housing needs allocation period (see CP&DR, September 2007 ). "The water situation may require that that we look more closely at the land use densities," Lile said. Lancaster Public Works Director Randy Williams, who has become Lancaster's point man on water, said his city is starting to have the same discussion. "People are beginning to realize that the higher density is not just an infrastructure efficiency issue, it's a water efficiency issue," he said. Lancaster is completing a water recycling system that will provide non-potable water to customers for irrigation. The city also is working on a pilot project for recharging groundwater with treated wastewater. Assuming the test project goes well, the city could put as much as 30,000 acre-feet a year of treated wastewater into the groundwater basin, Williams said. Palmdale and Lancaster officials and dozens of other stakeholders are putting their faith, and even their money, into the regional water management plan that was completed in late 2007. It calls for groundwater banking, recycled water projects, water reclamation, infrastructure improvements, riparian habitat restoration and even preparation of a coordinated land use management plan by Palmdale, Lancaster, Los Angeles and Kern counties, and the Antelope Valley Conservancy. The water management group composed of 11 public agencies is seeking state grants for the seven highest priority projects, although the application was passed over in May for a round of grants from Proposition 84. "We have space available for growth, and yet we are being slowed down because of something like this ," said Gutierrez, reflecting a common opinion in the Antelope Valley. "Some of it we can control locally, but we don't control the Delta." Antelope Valley water providers are not the only ones reconsidering long-term supplies. The Eastern Municipal Water District, which serves Western Riverside County south of Riverside, earlier this year approved water assessments for nine large projects only after demanding project modifications to reduce water usage. The district, which had delayed taking action for months, also insisted it could revisit the assessments as more information becomes available. Contacts: Randy Williams, City of Lancaster, (661) 723-6044. Laurie Lile, City of Palmdale, (661) 267-5100. Jack Stewart, Rosamond Community Services District, ((661) 256-3411. Gretchen Gutierrez, Antelope Valley Chapter, Building Industry Association of Southern California, (661) 949-6857. Antelope Valley Integrate Regional Water Management Plan: www.avwaterplan.org

Construction activity may have declined dramatically, but the number of ballot measures seeking to slow or guide growth remains high. Voters across California will face close to 50 growth-related local ballot measures in November. It's not unusual for the number of slow-growth measures to increase at the end of a real estate boom. Construction often continues and the real estate market dies, and slow-growth measures are often a reaction to construction rather than the market. In other words, slow-growth ballot measures are a lagging economic indicator of the real estate market. This November's total is down from the 78 measures on the November 2006 ballot, partly because California had two primaries this year. If past trends prevail, the slow-growth camp may be in for a big day in November. Two years ago, the slow-growth side won 62% of measures classifiable as slow- or pro-growth. At the November 2004 election, the sides essentially split. During the November 2002 election, the pro-growth side carried the day 19-13. A study prepared in 2000 by CP&DR and Solimar Research Group found that twice a growth backlash in the form of ballot initiatives did not hit until the market had turned sour. California cities and counties may be seeing a repeat in 2008, although results were mixed during voting in the February and June primaries. Planners remain uncomfortable with what some call "ballot box planning" and what others term "direct democracy." "Measures that go on the ballot are often poorly written and confusing, and voters don't know what they are about," Vivian Kahn, of Oakland's Kahn Mortimer Associates, said during the recent California Chapter, American Planning Association conference. One of the APA's leading experts on the subject, Kahn urges planners to play the role of educators. Woodie Tescher, vice principal for PBS&J in Los Angeles, sounded a similar note during the same roundtable discussion. Ballot measures in some cities appear to be knee-jerk reactions to increased congestion and density in the vicinity of transit stations, he said. Planners need to explain to the community how these nodes of congestion actually provide cumulative benefits, Tescher contended. A complete roundup of local ballot measure election results will be available on www.cp-dr.com on November 5. Here's a look at many of the big land use elections set for November 4. Alameda County The ballot in the City of Pleasanton contains competing measures – the citizen initiative PP and the City Council alternative, Measure QQ. Measure PP would prohibit houses on slopes of at least 25% and within 100 vertical feet of a ridgeline, but it would exempt any project of 10 or fewer units. Measure PP also tightens the definition of a housing unit, which is important because Pleasanton has annual and ultimate housing caps approved previously by voters. The City Council's alternative would require the city to conduct a collaborative process to prepare a hillside and ridgeline protection ordinance. The long-controversial issue of hillside development in Pleasanton flared last year when the city approved the 51-lot Oak Grove subdivision for houses of at least 6,000 square feet apiece. Although the project also includes a dedication of 500 acre of open space, opponents prepared a referendum that appeared headed toward the June ballot. A Superior Court judge blocked the referendum because of signature-gathering irregularities. However, the ruling may have had the unintended consequence of providing political support for Measure PP. In Alameda and Contra Costa counties' East Bay Regional Park District, voters will decide on a $500 million bond to acquire parkland and develop facilities. On the Berkeley ballot is an initiative that would prohibit establishment of bus rapid transit (BRT) lanes – a reaction to an unpopular proposal for a BRT lane on Telegraph Avenue. Contra Costa County Voters in the Town of Moraga face competing ballot measures concerning lightly developed hillsides and ridges. Measure K would expand an open space zoning district by 1,700 acres. Development would be limited to 10- or 20-acre parcels with severe grading restrictions. Measure J is backed by landowner and developer David Bruzzone. Cast as a development agreement, Measure J would protect 320 acres as permanent open space but would allow housing development on about 130 acres that Measure K seeks to preserve. El Dorado County Ten years ago, voters approved Measure Y, an initiative that sought to block development that did not fully mitigate its traffic impact. Measure Y sunsets this year. In November, voters will decide on a less-stringent, 10-year extension. The revised Measure Y would apply only to single-family subdivisions of at least five units, permit the Board of Supervisors on a four-fifths vote to craft exceptions, and allow spending of federal and state funds for roads serving new development. Although the 1998 Measure Y was divisive, there is no organized opposition to the 2008 version. Los Angeles County Three fiscal measures top the ballot, while voters in several cities will also consider proposals to limit growth. Measure R is a half-cent sales tax that would generate an estimated $40 billion over 30 years for numerous transportation projects, including extensive rail and bus service expansions. Local officials are sharply divided over how the money should be spent, and the odds for the necessary two-thirds approval appear long. Voters also will decide two gigantic school bonds. The Los Angeles Unified School District has proposed a $7 billion bond – the largest local school bond in history – to fund ongoing classroom expansion and upgrade projects. Measure Q needs a 55% majority to pass. In addition, the Los Angeles Community College District has proposed a $3.5 billion bond to expand and modernize its facilities. A 55% majority is also needed for passage of Measure J. In Beverly Hills, opponents of a hotel and condominium project have qualified a referendum for the ballot. At issue is a plan approved in May to replace 217 rooms at the Beverly Hilton Hotel with a 170-room Waldorf Astoria and a conference center, construct up to 110 condominium units in two buildings of up to 18 stories, and provide 1,300 additional underground parking spaces. Officials estimate the project would generate $750 million for the city over 30 year. Opponents cite traffic as their primary concern. Santa Monica voters will decide the Residents' Initiative to Fight Traffic (RIFT), which would limit commercial development to a rolling five-year annual average of 75,000 square feet. In recent years, the city has permitted about twice that amount. Redondo Beach is another city where voters face competing ballot measures. The Building a Better Redondo initiative (Measure DD) is an overt slow-growth measure that would require voters to decide on any "major change in allowable land use," any project of more than 25 residential units or 40,000 square feet of floor area, and any project with a density of more than 8.8 dwelling units per acre. The City Council-backed alternative (Measure EE) would permit voters to decide on rezoning of residential, park and open space lands, as well as any proposal to increase the height limit in the coastal zone. For years, Redondo Beach officials have sought to redevelop the waterfront and the site of a power plant, as well as Torrance Boulevard. Those efforts, however, have met with stiff resistance. Marin and Sonoma counties A quarter-cent sales tax to fund development and operation of a commuter train from Cloverdale in the north to Larkspur in the south is back. In 2006, the measure received more than two-thirds support in Sonoma County but failed because of lukewarm support in Marin County. Also in Marin County is a referendum of the county's plan to construct public safety buildings of 83,000 and 7,500 square feet, respectively, on the east side of the Frank Lloyd Wright-designed Civic Center. Project opponents argue that Wright designated the area for cultural and educational activities, so the county should build facilities for the sheriff's office and emergency radio operations elsewhere. Monterey County A 25-year, half-cent sales tax for transportation returns. In June 2006, 57% of voters backed a tax, which requires two-thirds approval. Nevada County City of Grass Valley voters will decide on both the Managed Growth Initiative (Measure Z) and the Limited Growth Initiative (Measure Y). Put forth by slow-growth advocates, Measure Z would prohibit changes to the general plan's land use element without voter approval. The initiative could force a vote on several large development proposals that are inconsistent with the land use element. Backed by Mayor Mark Johnson, Measure Y would place a cap on housing units until 2020 and require voter approval of boundary changes and annexations. Orange County Measure V in the City of San Clemente would prohibit rezoning or development of open space lands without voter approval. The measure follows on the heels of a February referendum vote blocking a condominium development on land now designated as open space, although it contains a private golf course. The unrelated Measure W is an advisory vote on the LAB North Beach project, a proposed retail/restaurant/office/parking development on three acres of city-owned land. Open space is also the issue in San Juan Capistrano, where Measure X would prohibit any change in designation of open space lands, and Measure Z would authorize the sale of $30 million in bonds to acquire and enhance open space. Measure BB in Yorba Linda would prohibit the use of eminent domain for economic development projects. Measure Z in Seal Beach would impose a 25-foot height limit on the Old Town area. San Bernardino County On the ballot in the City of Loma Linda is Measure T, which would permanently preserve 1,675 city-owned acres in the South Hills for open space and recreation. About 200 miles away in Needles, an advisory measure asks voters about a Fort Mojave Indian Tribe plan to build a casino on 300 acres of tribal land adjacent to Interstate 40, four miles west of town. San Diego County Possibly the most intriguing measure on any ballot is Proposition B, affecting the San Diego Port Authority. The initiative would amend the port district master plan to permit a private entity to build a 96-acre deck 40 feet above marine cargo facilities. The initiative's backers, businessmen Frank Gallagher and Richard Chase, say the deck could provide a site for a football stadium, a sports arena, a convention center expansion, parking or other amenities. Port district directors lost a lawsuit to keep the initiative off the ballot. Proposition B will appear in the port authority's five member cities – San Diego, National City, Chula Vista, Imperial Beach and Coronado Proposition A tackles the subject of fire protection. Since 2003, large conflagrations that have killed 27 people and destroyed more than 4,000 homes in San Diego County. Proposition A would establish a regional fire protection agency and impose a $52 annual parcel tax to fund the agency. Although many local elected officials back the measure, the two-thirds vote threshold could be a major hurdle. Slow-growth advocates in the City of San Marcos are behind Proposition O, which would bar most land use designation changes without voter approval. The measure purports to be retroactive to July 23, 2007 – which would block a 217-acre specific plan that seeks to create a dense, mixed-use downtown with extensive parkland (see CP&DR Places, September 2007). San Marcos voters will also decide Proposition N, a city-backed measure that would prohibit changes to the city's ridgeline protection overlay zone without voter approval. San Francisco Voters here face the usual lengthy ballot. This time, it includes an $887 million bond to fund a seismically safe replacement for San Francisco General Hospital (Measure A), establishment of an affordable housing trust fund (Measure B), and creation of an historic preservation commission (Measure J). San Luis Obispo County An initiative intended to block a proposed Wal-Mart Supercenter is the talk of Atascadero. Measure D-08 would limit retail stores to 150,000 square feet, and would limit stores with 5% of floor space dedicated to nontaxable goods (i.e. groceries) to 90,000 square feet. San Mateo County Redwood City voters may choose from land use measures that appear somewhat similar. Backed by environmental groups, Measure W would prohibit development of open space, tidal plains, and bayfront without two-thirds voter approval. The initiative is aimed at potential development of 1,400 acres of former salt flats owned by Cargill. The City Council-backed Measure V would prohibit development of the Cargill property without majority voter approval. Santa Barbara County Measure A would extend a sales tax for transportation for 30 years. The existing quarter-cent tax is scheduled to expire in 2010. Measure W would double the rate. Two years ago, an extension of the quarter-cent tax failed to garner two-thirds voter support. In Buellton, Measure E would prohibit prior to 2025 the expansion of the city limits or the extension of sewer or water service beyond the boundaries without voter approval. Measure F would impose the same requirements but only through 2014. Santa Clara County A one-eighth cent sales tax to provide additional funding for a BART extension to San Jose is on the ballot as Measure B. The tax would be in addition to an existing half-cent sales tax for BART and other transportation projects. The new tax would be collected only if the Federal Transit Administration contributes $750 million to the BART project. Meanwhile, Measure C is a required advisory vote on the Valley Transportation Plan 2035. Measure D would eliminate the requirement that future transportation plans be subject to advisory votes. In the City of Morgan Hill, voters will decide on the city-backed Measure H, which would modify a housing cap to permit development of 500 units in downtown. An initiative seeking to overturn the city's inclusionary zoning and affordable housing policies, however, will not appear on the ballot because a Superior Court judge ruled it would conflict with state housing law. Solano County Measure T asks voters to extend a slightly modified version of the existing Orderly Growth Initiative and ratify an updated county general plan. Scheduled to expire in 2010, the Orderly Growth Initiative prohibits most development of agricultural lands and directs growth to incorporated cities. Voters rejected an effort to extend those restrictions two years ago, but that opposition appears to have faded. Stanislaus County Measure S is the latest attempt for a half-cent sales tax to fund transportation. The tax would last 20 years and half of the revenue would pay for repairing and upgrading city streets. Ventura County Oxnard voters will decide what might be the most draconian growth-control measure on this fall's ballot. Measure V would require voters to decide on any development project of at least 5 residential units or 10,000 square feet of commercial, retail or industrial space that is proposed within five miles of an intersection with a level of services worse than C. Essentially, the measure would put every project before voters. Councilman Tim Flynn, who is also challenging incumbent Tom Holden for mayor, is Measure V's chief proponent. Both the business community and organized labor have come out against Measure V. In Fillmore, Measure I would limit development in the North Fillmore Area to 350 housing units, instead of the planned 700.

Barack Obama and John McCain are both selling themselves to the American people as reformers. And neither was raised in a conventional American city or suburb. So you'd think that they would have unconventional ideas about how to deal with growth, planning, and development issues. Think again. By and large, the two presidential candidates have adopted utterly conventional partisan positions on these issues – when they talk about them at all, which is almost never. Barack Obama managed to utter the phrase "cities to rebuild" in his acceptance speech in Denver. John McCain said not a word, though he did name as his running mate the first former mayor on a presidential ticket in 40 years. Neither candidate has said much – at least in a high-profile way – about environmental policy or transportation funding, the two federal programs that typically affect planning and development patterns the most. This is more than a bit surprising when you consider that climate change appears to be the greatest environmental challenge of all time and the federal transportation trust fund is broke. The two candidates could not be more different in their background on cities and development. Though he grew up in Indonesia and Hawaii, Obama has been rooted as an adult in the South Side of Chicago – a distinctive urban landscape if ever there was one. He worked there 20 years ago as a community organizer and in his presidential campaign has continued to identify himself with the "place" aspects of his home turf, including the intellectual oasis of Hyde Park near the University of Chicago, where he lives, and the struggling African-American neighborhoods that surround it. McCain, on the other hand, often comes across as a guy who didn't grow up anywhere in particular, although the truth is that he has spent more time inside the Beltway than anywhere else. Born and raised mostly on Naval bases, McCain went to high school in suburban Washington and then became a Naval officer himself. Late in his military career he lived in Washington to attend the Naval War College and serve as the Naval liaison to the Senate. He moved to Arizona in 1981, after retiring from the Navy and marrying into a prominent Phoenix family, but he was elected to Congress the next year and has been there ever since. When he was accused of being a carpetbagger during his first run for Congress, McCain told a newspaper reporter, "I wish I could have had the luxury, like you, of growing up and living and spending my entire life in a nice place like the First District of Arizona, but I was doing other things. As a matter of fact, when I think about it now, the place I lived longest in my life was Hanoi." Though neither has said much about cities or development in the campaign, at least Obama's issues operation has addressed these topics in detail. (The best place to find Obama's stuff is at http://barackobama.com/issues .) He has promised to create a White House Office of Urban Policy. And he has generally accepted the urban and metropolitan policy ideas from the Brookings Institution's Metropolitan Policy Program with very few edits. In June, Obama gave a speech to the U.S. Conference of Mayors that could have been delivered by Bruce Katz of Brookings. In the presentation, "A Metropolitan Strategy for America," Obama said: "To seize the possibility of this moment, we need to promote strong cities as the backbone of regional growth." In his policy papers, Obama has supported such ideas as federal support for "regional innovation clusters" and creation of a National Infrastructure Reinvestment Bank staked with $60 billion for federal transportation financing. McCain, on the other hand, has no specific policy addressed at cities, metropolitan areas or even transportation infrastructure. He has focused a lot of policy attention – as has Obama – on energy independence, proposing everything from a new emphasis on renewable resources to the construction of 45 nuclear power plants. (The best place to find McCain's policy stuff is at www.johnmccain.com/Informing/Issues .) The one interesting policy position McCain has taken is on climate change. He has come out strongly for a federal cap-and-trade system that would limit carbon emissions nationally and create a market among carbon emitters. He held back from supporting the Lieberman-Warner climate change bill because he wanted incentives for nuclear energy, even though Sen. Joseph Lieberman is one of McCain's closest friends in the Senate. But he has supported the concept of greenhouse gas emissions reductions and has not backed away from unconventional approaches. Obama's position on cap-and-trade is more or less the same as McCain's, and he has actually moved closer to McCain during the campaign on issues such as oil drilling. Probably the biggest question on both sides is how the two candidates would handle the issue of funding federal transportation programs. Other than environmental regulation, transportation spending is probably the most important role the federal government plays in shaping urban and suburban growth patterns. But the federal transportation trust fund is broke and in fact just got an $8 billion bailout from other federal funds. The reason is that the trust fund is funded with gas tax – and the gas tax is not indexed to the price of gas. As the price of gas goes up, gas consumption goes down, and federal gas tax funds shrink. It's also probably true that Congress has oversubscribed the trust fund, partly (to be fair to McCain) because of earmarks. Obama has a long list of transportation spending priorities – again largely borrowed from Brookings, with an emphasis on freight as well as passenger movement – and has given indications that he takes metropolitan transportation issues seriously. At a recent forum on transportation organized by the Metropolitan Planning Council in Chicago, McCain sent Rep. Jim Durkin, while Obama sent former Housing and Urban Development Secretary Henry Cisneros. But neither side has said much about how they would actually close the transportation funding gap. Increasing or indexing the gas tax would make policy sense, but it would be bad politics on both sides. A gas tax increase would hit the working- and middle-class hard, so Obama can't propose it. And McCain's an anti-tax Republican. In fact, last summer, when the price of gas was going through the roof, McCain proposed a federal gas-tax holiday, which would have put the transportation trust fund even deeper in the hole. Perhaps he's planning to plug the gap by eliminating all the bridges to nowhere in the federal budget. More than likely, either McCain or Obama would create new revenue through mechanisms that will cost people money but can't be classified as taxes. Higher freight fees to pay for new infrastructure are almost inevitable, for example. And if the feds create a cap-and-trade system, it will be very tempting to withhold and auction most of the carbon allowances, rather than distribute them to polluters for free – not because this is a good policy idea (which it might be), but because it will generate zillions of dollars for the federal government. As any economist will tell you, capping carbon emissions and auctioning off the allowances has almost the same effect as a tax. But at least a Republican in Congress can vote for it and not call it a tax. It's been a pretty dismal campaign season so far, with topics such as pig lipstick, unfortunately, taking precedence over more substantive issues. That means we do not quite know what Obama or McCain would do. The substantive policy discussion will have to wait, ironically enough, until after the election.

The state budget signed by Gov. Schwarzenegger in late September shifts $350 million from redevelopment agencies to schools, and it provides no funding at all for transit projects contained in the State Transportation Improvement Program. Still, the sentiment among many local government officials was that the budget could have been far worse. State budget negotiations and the ultimate adoption of a revenue and spending plan for the 2008-09 fiscal year dominated most of September – a month typically devoted to bill signings and vetoes by the governor. Instead, Schwarzenegger stuck to his promise and avoided action on non-budget bills until after he signed the budget on September 23. On the budget, the administration proposed shifting the greater of $225 million or 5% of redevelopment agency tax increment revenues annually for three years from the agencies to school districts – a proposal that the California Redevelopment Agency (CRA) said could be a step toward a permanent funding shift. With that proposal gaining traction in August and early September, legislative Republicans proposed taking all unallocated money in redevelopment agency low- and moderate-income housing set-aside funds, or about $350 million. Affordable housing advocates immediately went on the defensive, and the housing fund shift appeared to be a nonstarter with both Democrats and Schwarzenegger. During final budget negotiations, Schwarzenegger backed away from the three-year shift. In 2004, local government organizations endorsed Schwarzenegger's Propositions 1A and 42 – fiscal reform and transportation funding measures. In exchange for those endorsements, the governor promised not to raid local funding sources in the future. The League of California Cities and other organizations called the governor on his vow, and in a speech at the League of California Cities conference during late September, the governor took credit for protecting local revenues. In his speech, the governor did not mention the shift away from redevelopment agencies. According to analyses by the CRA and the Senate Local Government Committee, local agencies must pay their share of the $350 million total to school and community college districts by May 10, 2009. This is equal to 7.7% of tax increment revenue. If an agency has committed all or a portion of its share to debt service, the underlying city or county may make the payment. If the agency or its underlying city or county do not make the payment, the agency must cease all activities except for debt retirement. If no other money is available, an agency may borrow up to half of its current year contributions to its low/mod housing fund to make the payment; the housing fund must be reimbursed within 10 years. One question concerns use of bond proceeds to make the payments. "If payments are made using tax-exempt bond proceeds, unless the payment could qualify as a long-term capital borrowing or a de minimus amount, agencies run the risk of jeopardizing the tax-exempt status of the bonds," the CRA advised its members. "However, it may be permissible to use taxable bond proceeds." The CRA argues that the revenue shift is unconstitutional, and the CRA board is considering a lawsuit. A budget trailer bill, AB 1389, also requires redevelopment agencies to make up missed or unreported pass-through obligations to school and community colleges districts from the last five years. There is a sharp dispute about the amount involved but it could be as much as $100 million (see CP&DR In Brief, June 2008 ). On the transportation front, the California Transit Association dubbed the budget "abysmal." The budget contains $306 million for the state transit assistance program, down nearly $200 million from 2007-08 and down $250 million from legislator's recommendation in July. The budget also shifts nearly $1.5 billion away from the public transportation account to cover general fund expenses. The diversion from the public transportation account since 2000 is now more than $4 billion, according to the association. The budget contains no money for any transit capital improvements listed in the State Transportation Improvement Program. Aside from budget activity, the governor did sign a collection of bills to address the home foreclosure problems in California. Most of the legislation concerns private market activities, but two bills may be of interest to local government officials and planners. Senate Bill 1065 (Correa) authorizes cities and counties to use revenue bonds to refinance mortgages on owner-occupied homes for households earning up to 150% of median income. Assembly Bill 929 (Sharon Runner) raises the total debt that the California Housing Finance Agency (CalFHA) may carry by $2 billion. The agency issues bonds to finance low- and moderate-income housing.

The Ninth U.S. Circuit Court of Appeals continued to flesh out its property rights jurisprudence with a decision from Spokane, Washington — this time by siding with property owners seeking to protect their own rights by enforcing historic preservation regulations. The case was brought by property owners seeking to preserve the integrity of their historic neighborhood. The court ruled that the neighborhood group could sue under the Fourteenth Amendment's due process clause — which was perhaps the most important precedent from the case. However, the court concluded the group had not proven its claims. The decision from Spokane builds on a 2007 decision from Idaho in which a Ninth Circuit panel made clear that Fourteenth Amendment due process claims are not necessarily subsumed by the Fifth Amendment clause prohibiting a taking of private property without just compensation. The decision in Crown Point Dev., Inc. v. City of Sun Valley , 506 F3d 851 (2007) (see CP&DR Legal Digest, December 2007 ) reversed the court's long-standing rule against allowing substantive due process claims when a real property interest is at stake. The Crown Point decision was seen as a victory for property owners, who have had difficulty advancing 5th amendment takings claims in federal and state courts. In the case from Spokane, however, people fighting development attempted to leverage the Crown Point precedent to defeat a project. Filled with Queen Anne, foursquare, craftsman and bungalow style houses, the Mission Avenue Historic District is located just north of Gonzaga University in Spokane. The district is listed on the National Register of Historic Places, and since 1981 the city has had specific criteria and procedures in its municipal code for managing historic landmarks. In 2005, the city granted Vincent and Janet Dressel a permit to construct a duplex addition to a clapboard-sided foursquare house within the historic district. The Dressels, who remodel and convert houses into student residences, demolished a garage and erected what neighbors complained was a "box-like dormitory building." The city apparently granted the building permit without requiring a "certificate of appropriateness" or a special permit as specified by the municipal code. The Logan Neighborhood Association and individual residents sued the Dressels and the city, arguing that the neighbors' due process rights had been violated because the city did not enforce its municipal code. They also argued that the city violated the National Historic Preservation Act and the municipal code. A district court judge ruled for the city and the developers. At the Ninth Circuit, the city argued that any claim involving a diminution in real property value involved the takings clause, not the due process clause. That argument might have won a few years ago, but no longer. Three years ago in Lingle v. Chevron U.S.A., Inc., 544 U.S. 528 (2005) (see CP&DR, July 2005 ), the U.S. Supreme Court determined that a claim based on whether or not a regulation substantially advances a legitimate state interest is actually a due process claim, not a takings claim. " e agree with Logan Neighborhood that the takings clause of the constitution does not invariably pre-empt a real property owner's challenge under the due process clause," Judge Raymond Fisher wrote for the three-judge panel. However, to win a substantive due process claim, the plaintiff must also show it was deprived of a constitutionally recognized property interest, according to the Ninth Circuit. The neighborhood group argued that by misapplying the code, the city had decreased surrounding homes' property values. The court was not convinced. "Logan Neighborhood's ‘failure-to-protect' and ‘failure-to-enforce' allegations do not suffice. The constitution generally does not require the state to ‘protected the life, liberty and property of its citizens against invasion by private actors,'" Fisher wrote, citing DeShaney v. Winnebago County Dep't of Soc. Serv., 489 U.S. 189 (1989). "Spokane has no independent constitutional duty to safeguard the Dressels' neighbors from the negative consequences – economic, aesthetic or other otherwise – of the Dressels' construction project." The court also rejected the neighborhood group's argument that it had been deprived of procedural due process because it was not notified and given an opportunity to comment before the city issued the Dressels' building permit. "Assuming without deciding that a property owner ever could have a constitutionally protected interest in the proper application of zoning restrictions to neighboring properties, we conclude that Logan Neighborhood's procedural due process claim failed because Spokane's historic preservation provisions do not ‘contain mandatory language' that significantly constrains the decision-maker's discretion," the court ruled. The court also ruled that the neighbors could not press a claim under the historic preservation act and that potential municipal code violation was not subject to federal court review. The Case: Shanks v. Dressel , No. 06-35665, 08 C.D.O.S. 11447, 2008 DJDAR 13658. Filed August 27, 2008. The Lawyers; For Shanks: Charles Cleveland, (509) 326-1029. For Spokane: Milton Rowland, city attorney's office, (509) 777-1610. For Dressel: Steven Schneider, Murphy, Bantz & Bury, (509) 838-445.

Members of the public may sue to defend the public trust resource of wildlife, but the suit must be filed against public agencies responsible for protecting the wildlife, according to the First District Court of Appeal. The court ruled against environmentalists who sued owners and operators of windmills that are responsible for killing many birds at the eastern Bay Area's Altamont Pass. Environmentalists may sue, but they should have sued the permitting or oversight agencies, not the private parties that own and operate the windmills, the court concluded. "There is no suggestion that any defendant has conducted its operations in nonconformity with its conditional use permit," the court ruled. "Thus, a challenge to the permissibility of defendants' conduct must be directed to the agencies that have authorized the conduct." The California Energy Commission designated the Altamont Pass Wind Resource Area in 1980, and it quickly grew into the state's largest wind farm with about 5,000 turbines. However, the hilly grasslands of the area provide ideal raptor habitat that is even better now because windmill tower foundations provide burrowing opportunities for rodents. What no one seemed to realize during the 1980s was the raptors might fly into turbine blades. In 2004, the Energy Commission estimated that up to 4,700 birds – including golden eagles, red-tailed hawks, American kestrels and burrowing owls – are killed by Altamont windmills every year. Thus, when 20-year use permits began to reach their sunset dates and operators sought new permits, environmentalists pressed for the replacement of old turbines with fewer, larger and more bird-friendly models. The Alameda County Board of Supervisors in September 2005 approved the updated permits with new conditions, but environmentalists were not satisfied (see CP&DR Environment Watch, August 2005 ). Local Audubon Society chapters and a group with ties to organized labor filed California Environmental Quality Act lawsuits. That litigation was settled in early 2007 when the county and windmill operators agreed to adaptive management measures if bird deaths do not decrease by certain amounts. The Center for Biological Diversity (CBD) took a different approach. Before the county completed use permit renewals, the organization sued the windmill owners and operators for allegedly violating the state Unfair Competition Law and for destroying wildlife in violation of the public trust. One Alameda County Superior Court judge ruled that the CBD could not bring the Unfair Competition Law claims because Proposition 64 approved in November 2004 restricted such suits. Later, a different judge rejected the public trust doctrine arguments. The environmental group appealed only the public trust doctrine portion of the case. Superior Court Judge Bonnie Lewman Sabraw had accepted the windmill operators' argument that the public trust doctrine applies only to tidelands and navigable waters, and not to wildlife. In its unanimous decision, however, a three-judge panel of the First District, Division Three, ruled that Lewman Sabraw's ruling was wrong on this point. After reviewing the evolution of the public trust doctrine and case law, the First District concluded, " t is clear that the public trust doctrine encompasses the protection of undomesticated birds and wildlife. They are natural resources of inestimable value to the community as a whole. Their protection and preservation is a public interest that is now recognized in numerous state and federal statutory provisions." The First District also made clear that, although most public trust lawsuits are brought by government agencies, members of the public may also sue. "Many of the cases establishing the public trust doctrine in this country and California have been brought by private parties to prevent agencies of government from abandoning or neglecting the rights of the public with respect to resources subject to the public trust," Justice Stuart Pollak observed in the court's opinion. Those portions of the ruling were victories for environmentalists. The rest of the decision went the other way. "The defect in the present complaint is not that it seeks to enforce the public trust, but that it is brought against the wrong parties," Pollak wrote. "Plaintiffs have brought this action against the windmill operators whose actions they allege are destroying natural resources protected by the public trust. Plaintiffs have not proceeded against the County of Alameda, which has authorized the use of the wind turbine generators, or against any agency such as the California Department of Fish and Game that has been given the statutory responsibility of protecting the affected natural resources." The CBD should have sued "the appropriate representative of the state" charged with upholding the public trust, the court ruled. And because the county approved the new use permits three years ago, it is too late to challenge their issuance now, the court concluded. The Case: Center for Biological Diversity, Inc., v. FPL Group, Inc., No. A116362, 08 C.D.O.S. 12362, 2008 DJDAR 14691. Filed September 18, 2008. The Lawyers: For CBD: Richard Wiebe, (415) 433-3200. For FPL Group: William Berland, Ferguson & Berland, (510) 548-9005.