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.

The Environmental Protection Agency has until December 1, 2009, to promulgate standards for runoff from construction sites. The deadline is contained in a 2006 federal district court ruling that the Ninth U.S. Circuit Court of Appeals recently upheld. The ruling marks a victory for environmentalists but could provide a significant blow in the form of added expense to the already beleaguered construction industry. In 1999, the EPA announced it was undertaking rulemaking to address stormwater discharge pollution from construction and redevelopment sites. On August 31, 2000, EPA published a final notice listing construction activities as a "point-source" category under § 304(m) of the Clean Water Act. From that date, the EPA had three years to complete the rulemaking process. However, the EPA under the Bush administration reversed the course established by the Clinton administration. In June 2002, the EPA issued not a proposed rule, but three options it was considering – two involved potential new standards and one was "no new requirements." In April 2004, EPA chose the "no new requirements" option and halted the rulemaking process. The EPA concluded that existing programs and regulations at the federal, state and local levels were capable of controlling 80% to 90% of sediment runoff from construction sites, and that new rules would have an annual cost of more than $500 million and eliminate jobs. The Natural Resources Defense Council and Waterkeeper Alliance sued to force the agency to complete effluent limitation guidelines (ELGs) and new source performance standards (NSPSs) for discharges caused by construction and land development. The states of New York and Connecticut joined the environmentalists' side. The National Association of Homebuilders and the General Contractors of America sided with the EPA. District Court Judge George King in 2006 ruled for the environmentalists, concluding that EPA had a nondiscretionary duty to prepare the ELGs and NSPSs for the construction industry. After rejecting EPA and industry arguments that the case was in the wrong court and that environmentalists had no basis for their suit, the Ninth Circuit upheld Judge King's ruling. Because of frustration with EPA's slow pace of regulation, Congress in 1985 amended the Clean Water Act to require the agency to publish every two years a list of new categories of sources discharging "toxic or nonconventional pollutants" and to adopt new regulations within three years, the Ninth Circuit explained. Once the EPA listed runoff from construction and redevelopment sites as a new point-source category, the agency could not go back. "First, § 304(m)(1)(c) is clear that once a category is identified under subsection B, the promulgation of guidelines ‘shall be no later than 3 years after the publication of the plan,'" Judge Milan Smith Jr. wrote for the unanimous three-judge panel. "This timeline effectuates Congress' stated desire to force the EPA to more rapidly promulgate ELGs and NSPSs. If the EPA had authority to de-list point-source categories at its whim, however, this deadline would be rendered meaningless." In addition, Smith wrote, the process assumes that the agency has undertaken a public process prior to identification of a point-source category. "It follows logically that the three-year delay provided for in § 304(m)(1)(c) is not to decide whether to list a point-source category, but to allow the EPA to consider what the substance of the ELGs and NSPSs should be," Smith wrote. Environmentalists argue that such rules are necessary to protect waterways, beaches and drinking water sources from construction-site sediment. The EPA and the industry had no immediate reaction to the decision, which apparently will have to be carried out by the next administration. The Case: Natural Resources Defense Council v. U.S. Environmental Protection Agency , No. 07-55183, 08 C.D.O.S. 12341, 2008 DJDAR 14677. Filed September 18, 2008 The Lawyers: For NRDC: Melanie Shepherdson, (202) 289-6868. For the EPA: Robert Lundman, Department of Justice, (202) 514-2000.

A property owner challenging the constitutionality of an inclusionary housing ordinance may not employ the nexus and rough proportionality tests from the Nollan and Dolan cases, the Second District Court of Appeal has ruled. In litigation stemming from Santa Monica's inclusionary ordinance, the appellate court made clear that the Nollan/Dolan tests requiring that there be an essential nexus between a development's impact and an exaction, and requiring the exaction to be roughly proportional to the impact, apply only when a property owner is contesting a government decision on a specific project. "Both the United States and California Supreme Courts have explained the two-part Nollan/Dolan test developed for use in land exaction takings litigation applies only in the case of individual adjudicative permit approval decisions; not to generally applicable legislative … decisions," Presiding Justice Paul Turner wrote for the unanimous three-judge panel. The court also ruled that the City of Santa Monica did not have to seek state Department of Housing and Community Development review of its inclusionary ordinance because it was not part of the housing element. A 1990 initiative, Proposition R, modified the Santa Monica city charter to require 30% of newly constructed multi-family housing to be permanently affordable to low- and moderate-income households. Although the city adopted ordinances to implement the initiative, city officials found that actual production of affordable units fell well short of the 30% mandate. In response, the city in June 2006 adopted Ordinance No. 2191 requiring developers of at least four multi-family units to construct affordable units on-site or at another location. The ordinance eliminated the option of a developer paying an in-lieu mitigation fee. Aided by property rights attorneys at the Pacific Legal Foundation, a group called Action Apartment Association sued the city. The group argued that Ordinance No. 2191 violated the takings clauses of the Fifth Amendment and the California constitution, violated due process provisions in both constitutions and conflicted with various sections of the Government Code. A Los Angeles County Superior Court dismissed the claims, and the Second District affirmed the lower court ruling. The two issues on appeal were whether the city's ordinance amounts to an unconstitutional taking, and whether the city had to receive state department of Housing and Community Development (HCD) approval of the ordinance. Action Apartment Association argued that there was no connection between the construction of market-rate units and the need for subsidized housing — in violation of the Nollan essential nexus test. The group also argued that the requirement to build affordable units was not roughly proportional to the impact of constructing new or replacement market-rate units — in violation of the Dolan rough proportionality test. The organization argued that the U.S. Supreme Court ruling in Lingle v. Chevron U.S.A., Inc., 544 U.S. 528 (2005), brought the Nollan and Dolan inquiries into facial challenges of land use regulations. The court disagreed. The Lingle decision overturned the Agins line of cases, which held that a regulation that substantially advances a legitimate state interest cannot be a taking. The Supreme Court ruled that the substantially advances test is no longer a ‘"freestanding" test for a regulatory taking, Turner explained. "The Supreme Court did not purport to hold the two-pronged Nollan/Dolan test applied to a facial challenge such as that asserted by plaintiff," Turner wrote. "Moreover, the Supreme Court in Lingle emphasized it was not disturbing any of its prior takings jurisprudence." "In San Remo Hotel v. City and County of San Francisco (27 Cal.4th 643, 670), our Supreme Court explained: ‘The sine qua non for application of Nollan/Dolan scrutiny is thus the discretionary deployment of the police power in the imposition of land-use conditions in individual cases,'" Turner wrote. It took the court only two paragraphs to dismiss the contention that the city had to submit the ordinance to HCD. "Only housing elements or amendments thereto must be submitted to the Department of Housing and Community Development for review," the court concluded. "The city's affordable housing ordinance is not a housing element." The Case: Action Apartment Association v. City of Santa Monica , No. B201176, 08 C.D.O.S. 11585, 2008 DJDAR 13789. Filed August 28, 2008. The Lawyers: For the association: James Burling, Pacific Legal Foundation, (916) 419-7111. For the city: Alan Seltzer, city attorney's office, (310) 458-8691.

Faced with the potential demise of a highly anticipated 430-acre commercial and residential project, the City of Marina has added more than $80 million worth of subsidies and incentives to a deal with developers. In the recently approved deal, the city also reduced the developer's workforce housing obligations and agreed to cover half of water connection fees. Because of the crash of the housing market crash, the developers of The Dunes on Monterey Bay revealed in November 2007 that the project was in jeopardy and asked the city to renegotiate various agreements. A new deal fell apart in January when the Fort Ord Reuse Authority (FORA) declined to subsidize the project. In August, the City Council unanimously approved the new deal with at least $106 million in redevelopment subsidies despite requests from residents for more time to review and comment on the arrangements. Since then, the city's arrangements with Marina Community Partners LLP (a collaboration of Shea Properties, Shea Homes and Centex Homes) has become an issue in this fall's campaigns for mayor and City Council. Mayoral candidate Bruce Delgado, a former councilman who narrowly lost a 2004 bid for mayor, complained about "giving away 30 years worth of property taxes and debt service." He argued that the deal will cost the city about $200 million, and said, "It's not worth $200 million to Marina to build now what's going to be built in two or three years anyway." But Mayor Gary Wilmot defended the deal to the Monterey County Herald. "We're going down the path and delivering to the citizens what they wanted," he told the newspaper. "We are in the process of basically pulling together a city." "The revised deal is needed to meet some primary objectives of the city," Marina Development Services Director Doug Yount asserted. "It keeps the project moving forward, especially the economic development component." "It was not just a matter of continuing forward now, it was a matter of whether it was going to forward at all," Yount explained. "There are a whole lot of projects where the developer has just walked out the door." If that were to happen in a small market such as Monterey County, a new developer might not materialize, he said. Yount also said there is no debt service involved because, under the deal, the city's redevelopment agency will provide subsidies only as The Dunes generates tax increment. The agency will not front the money, he said. Marina is a city of about 19,000 residents located on Monterey Bay a few miles north of Monterey. Marina's fortunes were strongly tied to the adjacent Fort Ord Army base. When Fort Ord closed in 1994, Marina and its neighbor Seaside got slammed by the loss of thousands of civilian and military jobs. However, the base reuse process resulted in those cities receiving more than 2,000 acres apiece of the former military base. Today, former Fort Ord land composes about half of Marina's territory. Redevelopment of the 28,000-acre base (the majority of which is designated as open space or parkland) has been highlighted by the opening of California State University, Monterey Bay during the mid-1990s. Today, the 1,400-acre campus is home to a student body of 4,000 and growing. Other redevelopment efforts have been less successful. A few housing projects have been completed but the vast majority of the planned 6,000 housing units on the old base remain just that – planned. "They are pretty much stopped at the present time," said Steve Endsley, FORA's director of planning and finance. Several of the large reuse projects are located in Marina, including the 1,050-unit Marina Heights, and the 700-unit Cypress Knolls senior housing project. The largest of all, however, is The Dunes on Monterey Bay, which was originally called University Villages. Approved in 2005, the project calls for 1,237 single-family and multi-family housing units, a 368,000-square-foot regional retail center, a pedestrian-friendly promenade lined by a wide mix of uses, two hotels, offices and 21 acres of parks. Anchored by Target, REI and Kohl's, the retail center opened shortly before last Christmas. But developers halted early grading for a hotel, offices and residences at about the same time because local housing prices had already fallen by nearly 20%. Under the original deal, the city agreed to provide Marina Community Partners with $29.3 million from the redevelopment agency's low- and moderate-income housing set-aside fund. In exchange, 20% of the housing units were designated as affordable, and another 10% were designated as "workforce" housing affordable to households making 120% to 150% of median income. The new deal greatly sweetened the pot. According to Yount, staff reports and City Council resolutions: • The redevelopment agency will provide all of its non-housing tax increment generated by The Dunes project through 2030 – estimated at $58 million – to the developers. • The agency will also direct an estimated $18 million worth of low/mod housing funds from elsewhere in the redevelopment project area to The Dunes. • The land sales price was cut from $48 million to $43 million. • The number of workforce housing units was reduced from 124 to 62. • 100 proposed live-work units next to the promenade may instead be constructed as regular townhouses. • Fees for connecting to the Marina Coast Water District system will be split 50-50, with the redevelopment agency using tax increment generated after 2030 to pay its share. City officials contend the deal is still a winner for Marina and other public agencies. The city expects to get $34 million in sales tax and another $41 million in hotel tax through 2030, plus $70 million in tax increment between 2030 and 2045. The county, the local school district and FORA will continue receiving their full shares of tax increment as required by law. The new deal sets a lower threshold for developers to share "additional profits" with the city. And at full build-out, the project will provide 4,700 permanent jobs — roughly equal to all the jobs currently in town – and about 300 units of below-market housing. Yount said the redevelopment agency's investment will pay off in $1.5 billion worth of new development. Plus, he said, the redevelopment subsidy is entirely dependent on the project going forward. "If they don't build anything, they don't get any increment," he said. "The quality of the project remains the same. You can't swap out housing for something else. You can't get rid of the mixed-use character. You can't get rid of the arts and cultural district," Yount said. "We are implementing the base reuse plan." Still, Endsley said FORA declined the city's request for direct financial participation in The Dunes. "We were not able to do that, not because we don't support the project and wish it well, but because those tax increment dollars have never been used in that way," Endsley said. "We can't afford to invest in individual projects." Instead, FORA is putting money into infrastructure that provides for the overall base reuse. LaVonne Stone, who heads the Fort Ord Environmental Justice Network, expressed dismay at what she considers an inadequate commitment to affordable housing at The Dunes and other reuse projects. "You've got land, and you've got money, and you've got people moving in all over the county. But the little people who lost jobs and were affected by the closure of the Fort Ord are ignored," Stone said. Originally, housing advocates, including U.S. Rep. Sam Farr (D-Carmel), pressed for 50% of new units on the old base to be affordable. But city and county officials resisted, and it now appears about 20% of new units will be available at below-market prices (see CP&DR Local Watch, January 2006). Mayoral candidate Delgado, a Green Party member, also decried the cut in affordable housing at The Dunes, as well as design issues. He described the regional commercial center as "a big-box shopping mall" that could have been built anywhere. Construction of the next phase of The Dunes, including the promenade, a hotel and some housing, is scheduled to resume this month, according to Yount. Contacts: Doug Yount, City of Marina, (831) 384-7324. Steve Endsley, Fort Ord Reuse Authority, (831) 883-3672. Bruce Delgado, candidate for mayor, (831) 384-1376. LaVonne Stone, Fort Ord Environmental Justice Network, (831) 582-0803.

We've all seen in recent weeks the cruelty of hurricanes uprooting houses as easily as trees, tossing cars into fields and reducing farms to rubbish heaps. Tropical storms go where they want, and anything less than monolithic masonry is a goner. Even with the damage they bring, however, hurricanes are kinder than freeways. Freeways rip through existing cities like steel cables snapping at high tension, leaving impassable barriers and divided neighborhoods. And unlike the damage caused by hurricanes, the dead space of freeways cannot be repaired. The devastation is permanent; it is part of the landscape. Only two exceptions are available to alter the impact of freeways: In the case of elevated roadways, we can take them down, as San Francisco did with the Embarcadero Freeway along the waterfront. And in the case of corridors located in trenches, we can build above them. The latter strategy is the gambit of Park 101, a proposal to build a half-mile-long green swath above the Hollywood Freeway in downtown Los Angeles. The proposal, designed by 40 students interns under the supervision of EDAW, the national landscape architecture and planning firm, is to "cap off" the roadway and cover it with a roof of grass. On first impression, the Park 101 design is naïve, over-reaching, romantic, hopelessly optimistic. The scheme looks as if the angels who originally let Ireland fall from heaven one day had gotten a little tipsy and spilled some surplus buckets of celestial turf upon the concrete and asphalt of downtown L.A., saying, in their best brogue, "because the dear souls of the diocese seem to need it so." After we get over the novelty of the design, we realize something else: Romantic and naïve or not, Park 101 is a great idea. The proposal remakes the ugly and unwalkable mess known as the Los Angeles Civic Center into a garden of delight. The new above-lanes walkway would create pedestrian links among a group of heretofore mutually isolated places – among them, the Los Angeles County buildings, the Los Angeles Cathedral and historic Olvera Street. The walkway also sends out its green tendrils to other open spaces, most notably the 18-acre Grand Avenue Park, which is currently in design development a few blocks south of the freeway trench. The scheme reminds me, albeit loosely, of Frederick Law Olmstead's "Emerald Necklace," a linear system of loosely connected parks in Boston, not entirely unlike a linear park built atop a freeway, connecting a series of other downtown parks and open spaces. The computer renderings of Park 101 remind me of those black-and-white optical tricks, in which the black lines and the white spaces around them trade places as foreground and background, teasingly asking us to choose which image is "real." Similarly, in Park 101 negative spaces of downtown, such as the dead air above the freeway, become positive green space, changing our mental image of downtown L.A. We can see spaces and spatial relationships previously unnoticed (at least by me), especially the way buildings located on either side of the Hollywood Freeway appear closer to one another when the chasm between them is filled in. As in the environmental art works of Christo and others, Park 101 takes a familiar landscape and makes it into something unfamiliar, and infinitely more attractive. The least appealing and least workable part of downtown could plausibly become its social center. This is not to say that some parts of Park 101 are not jejune or even downright silly. The intern designers envision an amphitheater, which is a favorite device of landscape architects who love the look of terraced semicircles merging with earthworks, even though small amphitheaters are usually met with indifference by park users. More questionable is an urban forest to be planted atop the cap, although Mike Williams, one of the EDAW project managers, told me that five-foot deep berms may accommodate some tree roots. More questionable still is a parking structure to be located beneath the enclosure, at the freeway level. This sounds dark and hard to secure. And about the proposal for a place-marker tower with a pencil-like profile, foreseen as the tallest building west of the Mississippi. It deserves to be crumpled up in design student's waste basket, as surely it will be. Engineering the enormous bridge seems the greatest challenge. Williams tells me there are precedents, although none as large as a half-mile long freeway bridge within the mile-long park. A five-acre, above-the-highway park exists in Seattle, and Williams said that EDAW's structural consultant, the Paris office of DMJM, has experience in designing analogous structures. Beyond the politics of traffic and parking in Los Angeles, which are considerable, is the matter of cost, which I don't pretend to know. A similar proposal a few years back to cover a portion of La Cienega Boulevard in south Los Angeles had an estimated costs of several hundred million dollars. Park 101 would almost surely cost more. (EDAW did a feasibility study for another over-the-bridge in Hollywood that might provide a basis for estimating engineering costs.) Charming or not, it would take the power of a gale-force wind to turn this scheme into something real beneath our feet. Transportation engineers must reroute much of downtown, where daytime traffic varies between slow and no-go. (Could an increase in foot traffic in the Civic Center reduce the need for cars?) The scheme would also require a long battle with entrenched interests (sorry, "stakeholders") although it is conceivable that the greenway would ultimately boost property values, justifying the public investment. In any event, we should begin troubleshooting this proposal immediately. Cities are impossible without freeways, and they are miserable places without walkable open space. Fanciful or not, Park 101 is worth building.

For more details on developments since the Fall of 2008, check out CP&DR's SB 375 Resources Page . SB 375, the anti-sprawl bill signed by Gov. Arnold Schwarzenegger last night, is both more and less powerful than it's advertised to be, and whether it leads to sweeping change depends on how aggressively California's regional planning agencies implement it. It's more powerful than advertised because it contains potentially revolutionary changes in California's arcane processes of regional planning for transportation and housing – largely by mandating the creation of "sustainable" regional growth plans. And those changes could become more important on Friday, when the California Air Resources Board is expected to double the greenhouse gas emissions reduction targets that local governments must meet through land-use planning. It also has the potential to significantly rearrange the Regional Housing Needs Assessment process, and provides significant breaks under the California Environmental Quality Act for certain types of transit-oriented projects. But it's less than revolutionary on the land-use front, largely because it's incentive-based. Despite the headlines, the law doesn't "tie state transportation funding to land use;" it merely charges regional planning agencies, which are run by local elected officials, with making sure their own funding decisions are consistent with the new regional plans. Local governments don't have to comply with the plans . And no on-the-ground change is likely to be seen for at least three years – until the regional planning agencies actually adopt the "sustainable communities" growth scenarios called for in the law. The bottom line is that the law won't be sweeping unless the state and the regional planning agencies take it seriously. After all, California has adopted potentially sweeping land-use reform before – for example, AB 857 , which contains clear and broad-ranging anti-sprawl language – but that reform has simply not been implemented. And there is clearly enough wiggle room for the regional planning agencies not to take the law seriously if they choose. Schwarzenegger said Tuesday , "This legislation constitutes the most sweeping revision of land-use policies since Gov. Ronald Reagan signed the California Environmental Quality Act." Senate leader Darrell Steinberg (D-Sacramento) said the bill "will be used as the national framework for fighting sprawl and transforming inevitable growth to smart growth. This is a historic day for California."  Schwarzenegger signed the bill only hours before the deadline on Tuesday – and with more suspense than anybody expected . At the Commonwealth Club in San Francisco last Friday, the governor was equivocal about whether he would sign the bill. Unconfirmed reports suggest that California's transportation lobby attempted behind the scenes to persuade the administration to veto the bill at the last minute – but those efforts failed. In the end, Schwarzenegger simply had to sign the bill, since it implements his much vaunted AB 32 and was endorsed by local governments, homebuilders, and environmentalists. The bill contains five important aspects that California planners should understand: 1. Creation of regional targets for greenhouse gas emissions reduction tied to land use. 2. A requirement that regional planning agencies create a plan to meet those targets, even if that plan is in conflict with local plans. 3. A requirement that regional transportation funding decisions be consistent with this new plan. 4. Tethering together regional transportation planning and housing efforts for the first time. 5. New CEQA exemptions and streamlining for projects that conform to the new regional plans, even if they conflict with local plans. 1. Regional Targets Under the law, the California Air Resources Board has two years – until September 30, 2010 – to give each of California's metropolitan planning organizations a greenhouse-gas emissions reduction target for cars and light trucks – but only through changes in the development pattern. As many commentators have observed , reducing emissions from cars and light trucks is a "three-legged stool." One leg involves greater fuel efficiency from new vehicles – a requirement called for under former Assemblymember Fran Pavley's AB 1493, which is currently in dispute between the state and federal governments. The second leg involves reducing the carbon content of fuels – a requirement called for under Schwarzenegger's low-carbon emissions standards. The third leg of the stool is changes in the growth pattern that reduce overall driving. The regional targets will cover only this third leg of the stool. Under the CARB's "Scoping Plan," required under AB 32, about 20% of overall emissions reduction must come from cars and light trucks. But 1.2% must come from local governments – and that figure is likely to double with the release of a revised Scoping Plan. The process by which CARB sets the targets is technical, but the agency will be required to set up a "Regional Targets Advisory Committee" that includes all stakeholders, including local governments, builders, and planners. MPOs can propose their own target. The target will be revised every 8 years to conform to the new, unified housing and transportation planning schedule set up by the bill. 2. The Sustainable Communities Plan Requirement Once the MPOs have received the regional targets in late 2010, they will be required to create a "Sustainable Communities Strategy" that lays out how the emissions reduction will be met. Technically, this strategy becomes part of the Regional Transportation Plan – an important point, because it tethers the sustainable strategy to federal transportation planning law. The Sustainable Communities Strategy was the subject of major debate in the Legislature – and as these strategies are shaped by the MPOs (whether in 2011 or before)  they are likely to serve as a lightning rod for discussion about the future growth patterns in every region. But the way SB 375 came out of the Legislature, the Sustainable Communities Strategy isn't quite as bulletproof as you might think. It does incorporate the RHNA requirement to provide housing to accommodate all income groups – for the simple reason that, if housing targets weren't incorporated, the emissions reduction target could be met simply by cutting growth. But provisions requiring incorporation of resource and open space land considerations were watered down. And because it's part of the RTP, the Sustainable Communities Strategy is subject to certain provisions of federal transportation law that could undercut the anti-sprawl efforts – especially a provision stating that the RTP must be based on "current planning assumptions" in the region that take general plans into account. "If a certain type of development pattern is unlikely to emerge from local decision-making," League of California Cities lobbyist Bill Higgins noted recently, "it will be difficult for the regional agency to say that it reflects current planning assumptions." In addition, Higgins and other local government lobbyists succeeded in inserting language saying that the Sustainable Communities Strategy is not a land-use plan and SB 375 does not confer land-use authority on the MPOs. As Higgins said last week at the CCAPA conference in Hollywood, this means that local governments' own General Plans don't have to conform to this Sustainable Communities Strategy. As is typically the case in planning, the Sustainable Communities Strategy can contain only "feasible" measures to reduce greenhouse gas emissions. If the end result doesn't hit the CARB target, the MPO must develop a second plan – the "Alternative Planning Strategy," which is technically separate from the RTP but nevertheless must lay out an alternative plan to meet the target. The alternative strategy becomes important in the CEQA exemptions below. 3. Transportation Funding Consistency Here is where the rubber meets the road – sort of. From the beginning, SB 375 has been advertised as the law where, at last, state transportation funding decisions are tied to land use. This is technically true – but only technically. Under 375, there are no state bureaucrats in Sacramento doling out transportation money to cities and counties based on whether the local anti-sprawl efforts are sufficient. Instead, the bill uses the existing system – which gives most of the power to make transportation funding decisions to the regional MPOs. So the only thing SB 375 says is that the Regional Transportation Plan has to be internally consistent – meaning the action items and financing decisions called for in the RTP must be consistent with the Sustainable Communities Strategy. This means SB 375 is subject to the same major structural issue as the RTP itself: Ultimately, the decisions at the regional level are made by MPO board members, who are local elected officials. And, as we all know, it's unlikely that elected officials sitting as regional planning board members will pull the trigger on each other. In other words, SB 375 talks tough about tying state and federal transportation dollars to land use decisions, but the bill does not alter the current regional planning structure, which delegates decision-making authority to local officials sitting as MPO board members. 4. Connection to Regional Housing Needs Assessment SB 375 also changes the state Housing Element law in important ways – and, for the first time, links regional planning efforts for transportation and housing. Under the bill, all transportation and housing planning processes are put on the same eight-year schedule – that is, the plans must be updated once every eight years. (There's a penalty for jurisdictions that don't meet the Housing Element schedule: They must prepare Housing Elements every four years instead.) The law also strengthens the language on required rezonings: If a local jurisdiction must rezone property as a result of the Housing Element, it must do so within three years and it must include minimum density and development standards for the site. Most important, however, is the fact that the RHNA allocation numbers must conform to the Sustainable Communities Strategy. This has important consequences for the RHNA process and Housing Element implementation. The regional planning agencies are required to provide local governments with a housing allocation representing their "fair share" of regional growth. But the Sustainable Communities Strategy is likely to concentrate future development around transit stops. The end result of the RHNA process in the future is likely to look something like what the Association of Bay Area Governments has recently done in this arena – cutting a deal among the local governments to allow more housing in transit-rich areas, and rearranging the RHNA numbers to accommodate that goal. 5. CEQA Exemptions and Streamlining In terms of planning practice, the most powerful provisions of SB 375 have to do with CEQA Exemptions and Streamlining. Under the new law, certain types of development projects are exempt from CEQA – or qualify for streamlined review – if they conform to the Sustainable Communities Strategy. And these projects qualify for streamlined review even if they conflict with local plans. Of course, such projects can't qualify for an exemption or streamlined review until a Sustainable Communities Strategy is adopted, which is likely about three years from now. But the list of caveats is long, meaning the eventual impact of the CEQA provisions may not be as significant as you might think. Two types of projects qualify for CEQA breaks under SB 375 – residential or mixed-use projects, and "transit priority projects". Under the law, a residential or mixed-use project that conforms to the Sustainable Community Strategy qualifies for CEQA streamlining. Specifically, the CEQA review does not have to cover growth-inducing impacts; and it does not have to cover either project-specific or cumulative impacts dealing with climate change. More significant is the "transit priority projects." These projects can qualify for either a full CEQA exemption or a streamlined environmental assessment if they meet certain criteria. "Transit priority projects" are projects that meet the following criteria: 1. Contain at least 50% residential use 2. Have a minimum net density of 20 units per acre 3. Have a floor-area ratio for the commercial portion of the project at 0.75 4. Be located within ½ mile of either a rail stop, a ferry terminal, or a bus line with 15-minute headways. Under the law, projects can qualify for a full CEQA exemption if: • They are no bigger than 8 acres or 200 units • They can be served by existing utilities • They will not have a significant effect on historic resources • Their buildings exceed energy efficiency standards • They provide ANY of the following:      - 5 acres of open space      - 20% moderate income housing      - 10% low income housing      - 5% very low income housing. Under the law, "transit priority projects" that don't meet these criteria still qualify for a truncated environmental assessment similar to the truncated environmental assessment permitted for residential and mixed-use projects specified above. – Bill Fulton

Gov. Arnold Schwarzenegger acted on more than 200 bills over the weekend and went to the Commonwealth Club in San Francisco to commemorate the second anniversary of signing AB 32 – but those waiting for him to sign SB 375 are kind of like all those refugees stuck in Casablanca: They wait, and wait, and wait … At the Commonwealth Club on Friday , Schwarzenegger said: "We are not waiting for the federal government. We are continuing our push forward," Schwarzenegger said. "We are on the right track, not just for California, but for the country." Referring to SB 375 , however, Schwarzenegger said: "It will be a huge bill. The important thing is, again, that it is written the right way. I'm going to look at that bill very carefully, because in principle, I love that idea." Schwarzenegger has until Tuesday to act on the bill. The Sacramento Bee reported on Sunday that the bill's author, Darrell Steinberg, again promised whatever cleanup legislation is necessary in a Friday meeting with the Administration. He told the Bee that it would be difficult to get the SB 375 coalition together again next year. SB 375 would require California's regional planning agencies to create a future growth scenario that will cut greenhouse gas emissions and then provide a series of incentives, including transportation funding and exemptions under the California Environmental Quality Act, for projects that conform to those plans. It was a major topic of conversation at the California planning conference last week, with local government and planning lobbyists providing many details. Meanwhile, on Saturday Schwarzenegger signed well over 100 bills , including 10 dealing with wildfires. Tops among them was SB 1595 by Christine Kehoe, D-San Diego, which cracks down on landowners in high fire hazard areas and requires them to create more "defensible space". But Schwarzenegger also vetoed almost as many bills, saying over and over again in veto messages: I am only signing bills that are the highest priority for California." -- Bill Fulton

In a major reversal, the Ninth U.S. Circuit Court of Appeals has ruled that wireless telecommunications providers can no longer challenge local zoning regulations on the basis that the zoning has the potential to prohibit telecommunications services. Instead, providers will have to show that local regulation does in fact prohibit telecommunications services. The result of the decision is that it will be very difficult for companies to challenge entire zoning ordinances that regulate the installation of wireless telecommunications facilities such as cell phone antennas. Instead, the companies will have to contest how a local agency applies its ordinance in a specific instance. "There are going to be a lot fewer challenges to local government discretion over these facilities – how they look and where they go," said Thomas Bunton, the senior deputy San Diego County counsel who won the Ninth Circuit decision. In March 2007, a three-judge panel of the Ninth Circuit upheld a district court decision striking down San Diego County's 2003 ordinance regulating wireless facility location and appearance. Ruling for Sprint Telephony PCS, the court said the ordinance violated the federal Telecommunications Act of 1996 because the ordinance's discretionary review provisions could prohibit wireless communications services (see CP&DR Legal Digest , May 2007 ). The decision was based largely on City of Auburn v. Qwest Corp. , 260 F3d 1160 (9th Circuit 2001), one of the first circuit court decisions in the country regarding the Telecommunication Act's pre-emption of local zoning. In Auburn , the court adopted a broad interpretation of the pre-emption and struck down an Auburn, Washington, ordinance requiring telecommunications companies to pay for use of the public right-of-way. Earlier this year, however, the majority of Ninth Circuit judges voted to reconsider the March 2007 ruling in the San Diego County case. An 11-judge en banc panel heard oral arguments in June and in September issued a unanimous opinion that said the Auburn decision was wrong. At issue were two different sections of the Telecommunications Act – 47 U.S.C. § 253(a) and 47 U.S.C § 332(c)(7). The former section prohibits state or local regulation that "may prohibit or have the effective or prohibiting" telecommunications services. The latter section specifically preserves local zoning authority so long as local regulation does not "prohibit or have the effect of prohibiting" the provision of wireless services. Although the two sections contained some identical language, the Ninth Circuit had been interpreting them differently. The Auburn line of cases read the federal pre-emption in § 253(a) broadly. However, in MetroPCS, Inc. v. City of San Francisco , 400 F3d 715, a Ninth Circuit panel provided a narrower reading of the federal pre-emption based on § 332(c)(7). In MetroPCS, the court ruled that local regulation runs afoul of the Telecommunications Act only if the regulation bans wireless service or actually imposes restrictions that amount to a wireless service ban. Last year, the Eighth Circuit dismissed the Auburn approach and concluded in Level 3 Commc'ns, LLC v. City of St. Louis , 477 F3d 528, that a telecommunications company "suing a municipality under § 253(a) must show actual or effective prohibition, rather than the mere possibility of prohibition." The en banc panel reconsidering the San Diego case said it found the Eighth Circuit's critique of Auburn "persuasive." "When Congress uses the same text in the same statute, we presume that it intended the same meaning," Judge Susan Graber wrote for the Ninth Circuit. "Our holding today therefore harmonizes our interpretations of the identical relevant text in §§ 253(a) and 332(c)(7)(B)(i)(II). Under both, a plaintiff must establish an outright prohibition or an effective prohibition on the provision of telecommunications services; a plaintiff's showing that a locality could potentially prohibit the provision of telecommunications services is insufficient." After throwing out the Ninth Circuit's case law, the en banc panel considered the San Diego County ordinance anew. Adopted in 2003, the ordinance established a four-tier system for granting conditional use permits for wireless facilities, with the level of review varying based on the location, visibility and height of proposed structures. The ordinance requires facilities to be compatible with adjacent uses, camouflaged when appropriate and consistent with community character. The court had no trouble finding the ordinance valid under the Telecommunications Act. "Sprint cannot meet its high burden of proving that ‘no set of circumstances exists under which the ordinance would be valid' simply because the zoning board exercises some discretion," Graber wrote. " equiring a certain amount of camouflage, modest setbacks, and maintenance of facility are reasonable and responsible conditions for the construction of wireless facilities, not an effective prohibition." Jonathan Kramer, a Los Angeles-based consultant to local government on wireless regulation, said the en banc decision "completely reversed the law in the Western United States." "It is a stirring reversal in the direction of the Ninth Circuit and after many years brings some common sense back into wireless citing," Kramer said. "The Ninth Circuit stood in splendid isolation from other circuits." A number of local ordinances in California and elsewhere within the Ninth Circuit's territory have been struck down when telecommunications providers challenged entire ordinances. However, said Kramer, most challenges to a local agency's application of its ordinance in a specific instance have failed. Yet under the en banc ruling, nearly all future lawsuits will have to be "as applied" challenges because it will be very difficult for a company to contest an ordinance its entirety, Kramer and San Diego County attorney Bunton agreed. "From a local government perspective, the pendulum has swing a little bit past center," Kramer said. The Case: Sprint Telephony PCS v. County of San Diego , No. 05-56076, 08 C.D.O.S. 12025, 2008 DJDAR, 14334. Filed September 11, 2008. The Lawyers: For Sprint: Daniel Pascucci, Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, (858) 320-3000. For the county: Thomas Bunton, county counsel's office, (619) 531-4860.