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.

One of the things prominently on display at this year's California Chapter, American Planning Association conference was the evolution of the City of Los Angeles from a gargantuan suburb into a true "big city." New mixed-use and adaptive reuse projects are located all around the conference site in Hollywood, often within easy walking distance of a Red Line subway station. Conference attendees who ventured onto the Red Line encountered a bustling public transit system no matter the time of day. A breakout session on Tuesday explained the city's adaptive reuse ordinance and related programs.  But what the session highlighted was the re-birth of downtown Los Angeles as a desirable place to live for more than 10,000 people. Similarly, another breakout session on transit-oriented development focused on new development projects adjacent to transit stations along the Red Line and the Gold Line. But what that session highlighted was the re-birth of Los Angeles as a high-density big city where tens of thousands of people live in a setting more like New York or San Francisco than Los Angeles. The downtown adaptive reuse session, naturally, featured Tom Gilmore, the developer rightly credited with getting things turned around. A New York transplant, Gilmore in 1999 started acquiring properties east of Pershing Square. It was "an absolutely vacant" part of downtown at the time. Scores of buildings housed only pigeons, squatters and drug dealers. Tent encampments for homeless people lined the streets. Even most social service agencies had abandoned the neighborhood. But what Gilmore saw was first-rate Beaux Arts architecture, great location � and a world of potential. Gilmore deemed the area the "Old Bank District," a name he made up out of thin air. The name stuck. The city started to cooperate, people started to believe, and now people who could live anywhere choose to reside in these old mid-rise office, retail and industrial buildings that Gilmore and others have converted to residential uses. All of the presenters � Gilmore, downtown City Councilwoman Jan Perry, former city building official Hamid Behdad (who also worked in three mayoral administrations) and architect Wade Killefer � emphasized the need for vision and political willpower, because the usual processes and political inclinations are lined up against such ambitious projects. It's almost always cheaper and easier to ignore slums or to demolish decrepit buildings, and the situation with Gilmore's Old Bank District was no different. (Behdad: "If Jesus Christ came to the City of Los Angeles to get a permit to save the world, he would just say, 'Ah, the hell with it.'") You can see for yourself that downtown is on the rebound. Formerly frightful places feel almost inviting. Cranes are everywhere. Yet Gilmore warned that downtown needs another 10 years of progress before it is sustainable economically and socially. Meanwhile, Community Redevelopment Agency (CRA) big shot Don Spivak and Housing Department head Mercedes Marquez talked about some of the biggest and most impressive transit-oriented development projects anywhere on the West Coast � especially in North Hollywood along the Red Line and at Gold Line stations between downtown L.A. and South Pasadena. Especially impressive are the Gold Line developments � many of them affordable � at virtually every station in the City of Los Angeles. These include more than 500 units at the Lincoln Heights/Cypress Park station on Avenue 26 and more than 100 units at the Highland Park station on Avenue 57. The Lincoln/Cypress station is three minutes from Union Station, while the Highland Park station is seven minutes from Union Station. The city is also developing more than 400 units at Taylor Yards, which � though a mile from the Gold Line � is located adjacent to the Metrolink line. No Metrolink station is currently open, however. Marquez said the Housing Department has been working with CRA, the Department of Transportation, and other city agencies to acquire land for affordable housing "ahead of the curve," before the presence of transit stations Marquez said the Lincoln/Cypress project is "the fastest selling condo complex in all of Southern California because of the money we put in for soft seconds." The Housing Department controls the largest housing trust fund in the country. Most of the units have deed covenants guaranteeing affordability. Up to now, most TOD along the Gold Line has occurred in the more affluent communities of South Pasadena and Pasadena. Gold Line ridership has generally been below expectations because the light-rail line is slow and travels through relatively low-density neighborhoods. However, Gold Line ridership has increased 26% during the last year, to 24,000 riders per day. This compares to a 14% increase on all rail lines in L.A. and only a 5% increase on the Orange Line bus rapid transit in the San Fernando Valley. Overall, more than 300,000 people a day now ride rail and BRT lines in Los Angeles. � Paul Shigley and Bill Fulton

In a decision bolstering farmland preservation, the First District Court of Appeal has ruled that Humboldt County can enforce updated land use regulations against a landowner whose original Williamson Act contract predates the regulations. The court determined that unless they are cancelled, Williamson Act contracts renew every year and therefore are subject to newly adopted regulations for agricultural preserves. Thus, Humboldt County regulations approved in 1978 applied to the land in question, even though the original Williamson Act contract was signed in 1977. The property owner argued that the 1978 regulations — which increased the minimum parcel size for some agricultural preserve lands from 160 acres to 600 acres — could not be enforced because the new parcel size restriction would be a unilateral change to the 1977 contract. The court rejected that argument. " s a legal matter, by renewing a Williamson Act contract on each anniversary date, the parties entered into a new contract each year," Justice Mark Simons wrote for the unanimous three-judge panel. The California Farm Bureau Federation praised the ruling, which it said "strengthened and clarified" the Williamson Act. A ruling in the other direction would have converted the Williamson Act into a shield with which property owners could block the application of local plans and regulations, according to the federation. The litigation achieved prominence in Humboldt County because of longstanding controversy over rural land use regulations and because the two sides combined had reportedly spent about $4 million in legal fees. The litigation has received statewide attention because the ultimate outcome could impact Williamson Act implementation elsewhere. About 16 million acres in California, or about half of all privately owned land, are covered by Williamson Act contracts. Under the act, the owner of agricultural land receives a substantial property tax break in exchange for a 10-year commitment not to develop the property. Williamson Act contracts automatically renew every year unless the county or the property owner opts for non-renewal, at which point property taxes gradually increase over 10 years. In 1977, landowner Arthur Tooby signed a Williamson Act contract with Humboldt County covering 12,580 acres of his 13,700-acre ranch near Garberville. The following year, the county adopted new guidelines for land in the agricultural preserve. Among other things, the new regulations increased the minimum parcel size for Class B land from 160 acres to 600 acres to ensure agricultural viability. The Tooby Ranch lies in the Class B agricultural preserve. In 2000, local developer Robert McKee and his Buck Mountain Ranch Limited Partnership purchased 13,340 acres of the ranch from the deceased Tooby's estate. Recognizing the existence of a number of patent parcels on the ranch, McKee soon began applying for lot line adjustments so that he could sell off ranchettes. According to the court, McKee has since sold about 25 parcels to third parties. All of the parcels are at least 160 acres but smaller than 600 acres apiece. In December 2002, the county sued McKee and 47 third-party purchasers, arguing that the land divisions and sales violated the Williamson Act, the Subdivision Map Act, the Unfair Competition Act and posed a nuisance. The county sought to void the sales and halt future transfers. Three years later, Humboldt County Superior Court Judge Bruce Watson ruled the county could not apply the 1978 guidelines because doing so would violate state and federal constitutional provisions regarding contracts. He also ruled against the county on nullifying parcel conveyances. In early 2007, after the county had dropped its map act claim, Judge Watson ruled that McKee had not violated the Williamson Act or the 1977 Tooby contract. At the First District, McKee continued to maintain that the 1978 guidelines applied only to Williamson Act contracts consummated after 1978 and could not be applied retroactively to the 1977 Tooby contract. The county argued that the 1978 guidelines applied to all agricultural preserves, no matter when they were established. The court sided with the county, concluding that McKee's argument "would lead to an absurd result." "The final provision of the 1978 guidelines rescinds the 1973 guidelines, rendering them void and inoperative," Simons wrote. "If the 1978 guidelines were intended to apply only to preserves established from 1979 onward, as McKee suggests, then the passage of the 1978 guidelines would have left the county with no operative regulations for preserves established before 1979." Such a result, Simons continued, would be contrary to the county's intent and state law. After settling the question of the 1978 guidelines' enforceability, the court turned to the constitutional questions. McKee contended that permitting the county to incorporate the 1978 guidelines into the Williamson Act contract would amount to a unilateral amendment that is "unjust and inequitable." However, the court ruled that under the Williamson Act, the parties enter into a new contract every year unless one side provides notice of non-renewal. "Each year, a landowner bound by a Williamson Act contract has a choice: give timely notice of non-renewal, which preserves the current 10-year contract, or decline to give notice of non-renewal, which renews the contract for a new 10-year term. By choosing not to give notice of non-renewal, the landowner gains both the burdens and the benefits of a new 10-year contract," Simons wrote. "Because the parties to the Tooby contract entered into a new 10-year contract on February 1, 1979, all applicable laws and ordinances then in existence, including the 1978 guidelines, became part of the Tooby contract," the court ruled. "In the 22 years after the adoption of the 1978 guidelines, Arthur Tooby and McKee collectively renewed the original contract at least 22 times. The 600-acre minimum parcel size for divisions of Class B preserves imposed by the 1978 guidelines applied to the subsequent divisions of the Tooby Preserve." Not permitting counties to incorporate new regulations into Williamson Act contract renewals "would create substantial uncertainty, among both landowners and local governments, about what regulations apply to land under Williamson Act contracts," Simons wrote. "Land under contract could effectively be shielded from all subsequent efforts to regulate its use." The appellate court did not decide whether to nullify the land divisions and transfers, instead directing the trial court to fashion an appropriate remedy. Three weeks after issuing the decision, the appellate court rejected McKee's request for a re-hearing, setting up a likely appeal to the state Supreme Court. The Case: County of Humboldt v. McKee , No. A117325, 08 C.D.O.S. 10837, 2008 DJDAR 12897. Filed August 15, 2008. Modified September 10, 2008 at 2008 DJDAR 14313. The Lawyers: For the county: Kevin Brodehl, Morgan, Miller, Blair, (925) 937-3600. For McKee: David Blackwell, Allen, Matkins, Leck, Gamble, Mallory & Natsis, (925) 943-5551.

The realization is setting in among planners that climate change is going to affect planning practice – especially environmental review practice – very deeply. As a result, planners at this year's California Chapter, American Planning Association conference are anxiously seeking guidance.   At last year's CCAPA conference, planners embraced the issue of climate change this gusto. They clearly saw climate change as their issue, and the conversation was very enthusiastic, even somewhat heady at times. A year later, cold reality is setting in, and planners are full of questions. How does one actually address climate change in a general plan update? Which policies will truly be effective? How do I keep from getting sued by Jerry Brown? What the heck does my city do with the applications that keep coming across the front counter? How should an environmental review document address a project's potential greenhouse gas contributions? Can I still use a negative declaration? And what about the potential impacts of climate change on a project? This year's conference has numerous climate change sessions, and they are generally drawing upwards of 200 people apiece. But practitioners looking for hard answers are generally having to settle for suggestions and hints. The state of the art is evolving, state officials are still drafting rules and guidelines, and case law is nearly nonexistent. At one panel discussion, Terry Roberts, from the Governor's Office of Planning and Research, and Kirk Miller, general counsel of the Resources Agency, said right up front that they were not going to provide specifics. "It's in the works everybody. I don't have anything to show you today," said Roberts, eliciting both chuckles and sighs. At another panel, Sally Magnani, supervising deputy attorney general for the AG's environment section, emphasized the need to address climate change at the plan – rather than only the project – level. And she urged practitioners to be candid and forthcoming in environmental review documents. Magnani tried to downplay her office's role in climate change litigation, noting that the AG has actually filed only one suit himself – over San Bernardino County's general plan update. One reason the suit was filed, she explained, is that the county ignored a comment letter the AG filed regarding the county's dismissal of the climate change issue in the plan update and EIR. That was obviously a poor strategy. Since then, the AG has filed about 40 more comment letters. The clear implication from Magnani is that your agency better pay attention if it gets one. Anthony Eggert, science and technology advisor to the California Air Resources Board, said that the revised AB 32 scoping plan due out next week will call for more greenhouse gas emission reductions from land use and transportation than were in the preliminary scoping plan. How much he wouldn't say. If there is one thing that everybody agrees on it is this: Agencies may no longer dismiss a plan or large project's contributions to climate change as too speculative to study. "If you're not addressing climate change, you're going to get sued," said CCAPA Vice President for Legislative Affairs Pete Parkinson. – Paul Shigley

Can California and its communities fit together regional plans, local plans, state housing requirements, and new state requirements on greenhouse gas emissions reductions? Probably not, according to panelists speaking this morning at the California Chapter, American Planning Association conference in Hollywood. SB 375 – the regional planning bill designed to implement the state's greenhouse-gas emissions reduction requirements in the land use arena – does create closer ties between transportation planning and planning for affordable housing. But there's still a disconnect between regional plans and local plans – deliberately. The bill, which has passed the legislature and is currently sitting on the governor's desk, would require Metropolitan Planning Organizations to create "sustainable communities plans" that conform with greenhouse gas emissions reduction targets generated by the California Air Resources Board. The bill would then provide transportation funding incentives and truncated review -- or exemptions -- under the California Environmental Quality Act for projects that conform to the sustainable communities plan. There may also be better connections to the state's Regional Housing Needs Assessment process, which will now operate on an eight-year rotation rather than a five-year rotation, partly to match it up to the federally driven Regional Transportation Plan schedule. But local government lobbyists succeeded in including language protecting local land use authority. SB 375 specifically states that the regional planning process created under the bill does not usurp local land use authority. Translation: The regional "sustainable communities plan" and a city's housing element don't need to line up. "The regional plan could contemplate putting units in one location and the local plan could put those units in another location in the same jurisdiction," said Bill Higgins, land use lobbyist for the League of California Cities. Of course, under the terms of SB 375, if an affordable housing project conforms to the regional plan, it may qualify for a CEQA exemption – even if it conflicts with the local plan. And a project that conforms with the local plan may not qualify for a CEQA break if it does not conform to the regional sustainable communities plan.   Presumably, these provisions are supposed to encourage local governments to conform to the regional plan, even though consistency is not required. "We fought really hard to make SB 375 not just another top-down planning process from Sacramento," said Pete Parkinson, CCAPA's vice president for legislative affairs. However, Parkinson warned that local governments cannot simply ignore SB 375. The planning processes created by the bill  "place a huge responsibility on local governments to pay attention to this process," he said. -- Bill Fulton

California's planners are descending on Hollywood this week for their annual conference. Paul Shigley, Bill Fulton, and the rest of the CP&DR gang will be blogging daily from Sunday, September 21st, through Wednesday, September 24th on what's going on. Check it out at www.cp-dr.com/blog ! Begin with Bill's Sunday blog on the history of Hollywood as a real urban place -- as opposed to Hollywood the capital of tinseltown.   And if you're at the conference, be on the lookout for our special offer! Pick up a CP&DR conference postcard and use the promotional code to save 10% on a subscription or any other purchase on www.cp-dr.com !