To many Californians, the streets of San Francisco are what make the city so enjoyable. Some of the best parts of San Francisco are the lively, pedestrian-oriented streets and plazas near transit hubs that blossom with outdoor restaurants, cafes and performances. But away from these celebrated areas, and despite its scenic hills, San Francisco has many of the same problems with its streets as other aging urban areas. There are countless blocks of treeless roads that are more useful for shuttling speeding cars to freeways, than for providing safe corridors for pedestrians and bicyclists. The city has set out to improve those streets that don't match up to the city's reputation with an ambitious "Better Streets Plan" that was unveiled in June. Still in a draft form, the 250-page plan will probably get more interesting as specific projects are proposed and San Francisco's notoriously active citizens have a chance to debate what the plan will mean to their neighborhoods and city. "The plan creates a unified vision for San Francisco's pedestrian environment, which we haven't really had before," said Cristina Olea, of the San Francisco Municipal Transportation Agency and a project manager of the report. (The other major agency involved in writing the report was the city's Planning Department.) "The plan," Olea said, "includes policy recommendations and design guidelines to improve the pedestrian environment through pedestrian safety, accessibility, streetscape design, and storm water management." Streetscape design, she explained, includes pedestrian-scale lighting, landscaping, and furniture such as benches. Under the plan, suggested improvements include the addition of landscaped medians separating traffic lanes from sidewalks, more crosswalks, more mini-parks, expanded sidewalk seating for restaurants, and improved ways of collecting rainwater so it percolates into the ground rather than heading for the bay as runoff. Above all, the plan calls for vastly increasing the number of trees and landscaping along the city's streets. The Better Streets Plan (BSP) notes that many of the city's codes and standards are out of date, reflecting an outdated, single-use vision of the city's streets. "The pedestrian environment is about more than just transportation — the streets serve a multitude of social, recreational and ecological needs that must be considered when deciding on the most appropriate design," according to the plan. The plan is the result of more than 75 meetings with local residents. "They asked for more landscaping, improved maintenance, more enforcement and street designs that slow vehicle traffic," Olea said. According to the plan, 20% of all trips made in San Francisco are by pedestrians, while 1% of all trips are on bicycles. The rest are divided between cars and mass transit. Other planning documents focus on city streets, but Olea said the Better Streets Plan focuses on the pedestrian environment, looking at sidewalks and street crossings. The plan does not explain what will happen to specific streets, but it categorizes streets by defining land use and transportation characteristics, and suggests changes to each particular type of street, if the city chooses. The Better Streets Plan makes streets the focus of urban life. That makes sense, say planners, because one quarter of all land in the city lies within the public right of way. That's more land than is found in the city's parks. Implementing the plan's ambitions, of course, costs money. Plan authors say the city may use state and federal transportation and bond monies to do some of the work. Mayor Gavin Newsom has said some of the money could also come from private foundations. Private property owners would also be expected to play a major role, because most sidewalks are the responsibility of property owners. The primary focus of the BSP is the area between the curb and building facades, said Jason Patton, who chaired the community advisory committee of the BSP. "It doesn't do much with traffic calming," he said. "The BSP assumes that travelways stay more or less the same." Although drawings released with the BSP show narrower streets converted with more landscaping and fewer traffic lanes, the plan does not address specifics of how or when these conversions would be done. The BSP does suggest traffic calming ideas such as landscaped traffic circles, as well as temporary or permanent street closures to vehicles, using parking lanes for temporary restaurant seating, and shortening crossing distances for pedestrians. All of these ideas reduce space for cars and increase space for everything else. "We do want to slow traffic," Olea said, "but the Better Streets Plan does not cover roadway or lane widths." Some activists think the plan doesn't go far enough. "Our quarrel is they took urban design to the curb and not out into the roadway," said Tom Radulovich, executive director of a group called Livable City and a member of the Bay Area Rapid Transit District board of directors. "The real danger for pedestrians is in the roadway – traffic speed, traffic volume," he said. The plan "doesn't get into standards." "The report," Radulovich said, "is a collection of good practices all over the country. It lacks implementation." Olea said city officials looked at a number of other cities for ideas on street planning, including Cambridge, Mass., Portland, Oakland, Sacramento and Berkeley. Radulovich said other cities doing "bold stuff" with their streets include Chicago, New York and Vancouver. With its Better Streets Plan, San Francisco joins a national movement to spruce up streets and encourage people to get out of cars, a movement spearheaded by other cities and a national Complete Streets Coalition, based in Washington, D.C. According to the American Planning Association, the complete streets movement "represents a paradigm shift in traditional road construction philosophy. Instead of a project-by-project struggle to accommodate bicycle- and pedestrian-friendly practices, complete streets policies require all road construction and improvement projects to begin by evaluating how the right-of-way serves all who use it." Newsom recently announced plans to close part of the city's waterfront to cars during two weekends in late summer. As an indication of how difficult it can be to change city streets, that plan was criticized by merchants in Fisherman's Wharf who fear it will harm business during peak tourist season. The Better Streets Plan also suggests implementing pilot projects, but none has been identified, Olea said. The BSP draft says "high level implementation measures" will be further developed in the next stages of the plan process. The plan needs approval from the Municipal Transportation Agency board and the Planning Commission before it makes its way to the Board of Supervisors for final approval, likely sometime during 2009. The city also needs to complete environmental review of the plan. Contacts: Cristina Olea, San Francisco Municipal Transportation Agency, (415) 701-4579. Tom Radulovich, Livable City, (415) 344-0489. Jason Patton, BSP Community Advisory Committee, (510) 238-7049. Better Streets Plan: www.sfbetterstreets.org

The state has gone into the infill and transit-oriented development business for the first time. But it is hard to say whether the state government's newfound interest will reshape California. Using money from Proposition 1C, adopted by the voters in 2006, the Department of Housing and Community Development (HCD) recently awarded almost $500 million in infill infrastructure grants and transit-oriented development (TOD) grants. No, it's probably not enough to alter the state's growth patterns. But it is enough to get some projects off the ground that otherwise might have languished in the real estate downturn. And the TOD grants in particular gave HCD the opportunity to concentrate the money in transit-rich areas. There is a natural conflict at work here. The political impulse is to spread government money around and try to make everybody happy. But in the infill/TOD arena, spreading money around won't be much good. The money has to be concentrated to have an effect. The Schwarzenegger Administration was clearly careful to spread the money around geographically. But the TOD funding in particular had such strict geographical criteria that the money actually is concentrated in a few transit-rich areas of the state, especially San Diego, Oakland, and central parts of Los Angeles. The infill funding was spread around more widely, but because HCD attempted to pair up infill and TOD money wherever possible, the net effect was that TOD grants "leveraged" infill grants in a number of locations. Surprisingly, Sacramento – not widely known as transit-rich – scored big with the funds as well. So it will be interesting to see how well the administration survives politically the delivery of so much money in so few locations. Proposition 1C contained $850 million for the infill infrastructure program and $300 million for the TOD program. The criteria were pretty vague in the bond itself, but as HCD worked out the kinks, the program became more clear. The infill grants were designed to support roads, parks, and anything else in infill areas that could be defined as "infrastructure." The TOD grants were earmarked to help subsidize development projects in close proximity to transit stations. HCD generally required either a rail stop or a bus rapid transit stop to qualify, meaning that the TOD grants were inevitably tilted toward big cities. The two biggest winners in the first round of Proposition 1C funding were the MacArthur transit village in Oakland and the Railyards project in Sacramento. MacArthur got $34 million, and the Railyards – the biggest single winner – got $47 million. That means close to 20% of the money given away in this round by HCD is flowing to these two transit hubs. The MacArthur transit village is a one-square-block development project at the MacArthur BART station, bounded by Highway 24, MacArthur Boulevard, 40th Street, and Telegraph Avenue. It is planned to contain 4- to 6-story buildings with close to 700 housing units, a BART parking garage, and a small amount of retail, as well as upgrades to the existing BART plaza. Ironically, a lot of the grant money will be spent on – you guessed it – the new parking garage. The project's proponents say structured parking is a necessary first step to make the rest of the TOD work – and get people out of their cars. Unlike the MacArthur project, The Sacramento Railyards money was sought directly by the project's developer, Thomas Enterprises. (Money could be awarded either to public agencies or to private developers under the terms of the bond.) Again, the money will be used mostly for infrastructure. The Railyards involves the redevelopment of the old rail yards adjacent to downtown Sacramento, alongside Interstate 5 just south of the American River. It is by far the biggest infill project in a not-so-big city, and it is getting piles of public money. In April, the California Transportation Commission gave the city of Sacramento $20 million in Proposition 1B money to realign the railroad tracks on the site. Although Southern California also received a lot of money, Los Angeles projects did not do as well in scoring from both programs. High-profile projects such as the Figueroa Corridor and Grand Avenue in L.A. received grants – but not as much money as the MacArthur and the Railyards projects. And the L.A. projects did not win grants from both programs. Don't think that all the transit villages are in Oakland, though. The Palmdale Transit Village got $12 million, partly from the TOD program and partly from the BEGIN (Building Equity And Growth In Neighborhoods) program. Palmdale can surely use a new multi-modal transit center, but it's a little hard to imagine the Fruitvale BART Station program getting transplanted from Oakland to the High Desert suburb. San Diego did well too, but on a smaller scale. The proposed mixed-use project at the intersection of Commercial and 22nd got grants from both programs totaling more than $26 million. This development is not located downtown, but, rather, east of I-5, more than a half-mile from Petco Park. In addition to the geographical balance – and the geographical concentration – the first round of grants also provides a couple of other interesting lessons in the politics of infill development in California. The first is that big nonprofit housing developers do well. BRIDGE Housing will get a chunk of both the MacArthur and the Commercial and 22nd project. The second is that not all of our transit-rich cities are in the same boat. The most mature transit-oriented places – Oakland and San Diego among them – are seeing money flow not to downtown, but to outlying neighborhoods well served by transit. L.A. and Sacramento see most of their money flow downtown. The last lesson? It helps to be near the HCD office building. Both the Railyards project and West Sacramento's Triangle project – just across the river from downtown Sacramento and a recipient of $17 million in grant funds – are within walking distance of the HCD building. So Director Lynn Jacobs and her deputies will be able to keep a close eye on where their money is going.

A proposed subdivision that undergoes environmental review and receives approval does not become a new project for California Environmental Quality Act purposes merely because the local government's approval expires and a new subdivision map is submitted, the First District Court of Appeal has ruled. " xpiration of the tentative map did not convert the Moss subdivision into a new project for purposes of CEQA review. Nothing significant about the activity to be undertaken on the land has changed in any way; all that has changed is the county's previous approval of a map expired," Presiding Justice William McGuiness wrote for the court. "Expiration of a tentative map was an abstract occurrence that had no effect on the project's environmental impacts." Still, the court ruled that a new environmental analysis was justified in this case because of new information regarding water supply and a rare fish species. In November 1997, the Humboldt County Planning Commission adopted a tentative negative declaration regarding environmental impacts and approved a four-lot tentative subdivision map for 94 acres of recently harvested timberland owned by Michael Moss. A group called Friends of Westhaven and Trinidad appealed to the Board of Supervisors, but the board declined to hear the appeal because it was filed too late. The group sued, but a trial court judge and the First District in an unpublished decision upheld the Board of Supervisors. During the litigation, the tentative map expired. In August 2000, Moss asked the Board of Supervisors to postpone the expiration, and the board agreed. The same citizens group sued again and this time won at the First District. In Friends of Westhaven & Trinidad v. County of Humboldt , (2003) 107 Cal.App.4th 878, the appellate court ruled that the county could not postpone the expiration date of a map that had already expired. So in early 2004, Moss filed a new application for the same subdivision. This time, county planners said the subdivision required an environmental impact report, not merely a mitigated negative declaration. Moss asked the Board of Supervisors to overrule its staff, but the board adopted two resolutions backing the planners. One resolution called the subdivision a new project with potential impacts in numerous areas. The second, alternative, resolution said additional CEQA review was required because of substantial new information regarding water supply, firefighting capacity, water quality, and two species of fish. This time, Moss sued the county. Humboldt County Superior Court Judge J. Michael Brown determined that the subdivision was not a new project. But Brown ruled that substantial evidence supported the board's alternative resolution, and an EIR addressing the specific water, firefighting and species issues was required. Moss appealed the ruling requiring an EIR; the county appealed the decision that the subdivision was not a new project. A unanimous three-judge panel of the First District, Division Three, upheld the lower court but narrowed the ruling. The county argued that when the original subdivision map expired, all previous proceedings, including the environmental review, became void and the project had to begin anew. But the court ruled that the county's argument "improperly conflates CEQA with the Subdivision Map Act." The latter law does require a new procedure. However, McGuiness wrote, "that new government action taken with respect to the same activity for which approval is sought does not convert that activity into a new project for purposes of CEQA review." On the issue of new evidence, the county leaned heavily on two letters from the City of Trinidad's water commissioner, the listing of a species of salmon as threatened, and observations about coastal cutthroat trout. Trinidad was interested in the project because Moss proposed getting water for three houses from the north fork of Luffenholtz Creek. The city draws its water from the main stem of Luffenholtz Creek, below the proposed subdivision site. Trinidad Water Commissioner Chi-Wei Lin told the county that the city's water usage had increased 73% since 1995, when the county initially determined the subdivision would not have a significant impact on water resources. Lin said the creek was getting close to maximum capacity and the project had become a concern. He also contended the "shortage of water" could hinder firefighting capabilities at a time when wildfires were increasing, and the county needed to address potential water contamination from the proposed houses. The court said Lin's statements regarding increased fires, firefighting capabilities and potential contamination were unsubstantiated opinion. However, "evidence of increased water usage is new and could not have been known at the time the project was previously reviewed," McGuiness wrote. " vidence that demand upon Luffenholtz Creek was at or near the creek's maximum capacity in 2003 indicates that even a slight increase in demand from the project could have significant environmental impacts downstream." On the issue of fish, the county pointed to the federal government's listing of several salmon species as "threatened" in June 2004 and to reports that coastal cutthroat trout — a species of special concern under state regulations — had been observed in the main stem of Luffenholtz Creek. The county argued that the EIR should address coho salmon and the trout species. The court said no review of coho salmon was necessary, however, because the federal listing concerned coastal Chinook salmon, not coho salmon. Plus, the court found, there was no evidence that coho had habitat in or near the project area. The ruling was different on cutthroat trout. " he county's initial study suggests the presence of this species in Luffenholtz Creek had only recently been brought to its attention. Although evidence of the species' presence appears largely anecdotal, we must resolve our doubts on this point in favor of the county," the court ruled. Thus, the court concluded, the county may require supplemental environmental review "only with respect to the project's environmental impacts on (1) water supply to the City of Trinidad, and (2) the population of coastal cutthroat trout." The Case: Moss v. County of Humboldt , No. A114205, 2008 DJDAR 6635. Filed May 7, 2008. The Lawyers: For Moss: Allison Jackson, Harland Law Firm, (707) 444-9281 For the county: Carolyn Ruth, county counsel's office, (707) 445-7236.

Plans to further regulate stormwater runoff in Los Angeles and Ventura counties crashed to a halt in July, when a Los Angeles County Superior Court judge threw out the Los Angeles Regional Water Quality Control Board's basin plan. The court ruled that the plan failed to balance regulation with economic and social impacts. Superior Court Judge Thierry Patrick Colaw ordered the regional board to halt all activities related to stormwater, national pollutant discharge elimination system (NPDES) permits, and total maximum daily loads (TMDLs) for surface waters. The immediate result of the ruling was the regional board's cancellation of a workshop scheduled in Ventura at which local officials were prepared to fight what they consider onerous proposed stormwater regulations (see CP&DR , April 2008 ). Cities that have battled the basin plan and subsequent stormwater regulations argue that the plan is nothing more than a collection of numeric standards, and is not a policy document that takes into account environmental, economic and social factors. The regional board is likely to appeal the ruling in Arcadia v. State Water Resources Control Board , No. 06CC02974. A peripheral canal "should be part of a long-term strategy for the Delta to serve both water supply and environmental objectives." That is the conclusion of a new report by Public Policy Institute of California (PPIC) and University of California, Davis, researchers who advocate shipping water directly from the Sacramento River to canals located south of the Delta. Current Delta management practices are neither ensuring water supplies nor protecting the environment, according to the study, called "Comparing Futures for the Sacramento-San Joaquin Delta." Although ending all Delta water exports would be environmentally superior, that option is not economically feasible, the study's authors determined. They also rejected the concept of a "dual conveyance" system that would combine a peripheral canal with another canal through the Delta. The report also recommends: • Allowing some Delta islands to flood permanently because protecting the levees is not economically justifiable. • Beginning to transition away from the current Delta management system so that natural forces and disasters do not cause a crisis. • Developing a new framework for governance of a peripheral canal. The report is available on the PPIC website, www.ppic.org . The City of Whittier has become one of the latest to limit expansion of hookah bars. In July, the city imposed a 45-day moratorium on new smoking bars and lounges. Officials may extend the moratorium through the rest of the year. Hookah bars have exploded in popularity among young adults in Southern California during recent years. The bars feature Middle Eastern water pipes through which people smoke a mixture of tobacco, sugar and fruit pulp. Whittier has only one hookah bar, but planners report interest in others. City officials said the moratorium would provide them time to draft new regulations. Owners of vacant dwellings in the City of Temecula must register the units with the city, under a new ordinance the city adopted because of growing complaints about abandoned houses on which lenders have foreclosed. The city has also provided several workshops to help homeowners who are at risk of foreclosure.

Urgency legislation extending the life of all subdivision maps by one year has been signed by Gov. Schwarzenegger. The California Building Industry Association (CBIA) praised the governor for signing SB 1185 (Lowenthal). The real estate slowdown has prevented developers from following through with approved projects, and the legislation ensures developers and landowners do not have to go through the entitlement process a second time. "This bill gives homebuilders the ability to respond when the housing market improves," said Ray Becker, CBIA president. Schwarzenegger appears likely to sign a second housing recovery measure touted by the industry, AB 2604 (Torrico). That legislation would encourage local governments to defer collection of impact fees (except school fees) until the close of escrow on a new house, rather than collect fees when issuing a building permit. Builders say the measure would help cash flow. Meanwhile, lawmakers continue to negotiate over two bills with potentially significant implications for planning. Senate Bill 375 (Steinberg) attempts to tie together regional planning, infrastructure funding and reduced greenhouse gas emissions. Although builders and local governments still have reservations about the bill, a year's worth of negotiation on SB 375 may come to a head this month. Builders have responded by resurrecting SB 303 (Ducheny), last year's major housing element bill that went nowhere. After a re-write, SB 303 now would require transportation agencies serving populations of at least 200,000 people to develop different regional planning scenarios for implementing the state's greenhouse gas reduction law. The California Air Resources Board would review and could modify the scenarios. The bill still contains some housing element provisions, including a mandate that plans be updated either every eight or ten years and reflect the most recent regional transportation plan. A less sweeping bill is AB 842 (Jones), which would make future infill and transit-oriented development grants dependent on a regional or general plan that reduces vehicle miles traveled by 10%. The Legislature is scheduled to adjourn on August 31.

If Californians – and Americans -- are going to cut greenhouse gas emissions, they're going to have to drive less. But is wonking on policy really the best way to make this happen? Or do we have to create a compelling alternate vision for the next generation's lifestyle – a kind of Carbon-Free Futurama? Blogs and news sources – including this one – have been intensely focused on policy, especially since the passage of AB 32 in California in 2006. How should the law be implemented? What will motivate individuals and businesses to reduce vehicle miles traveled? What is the role of state and regional governments? How should private activity be taxed or regulated? But policy may be too slow and too reactive. At least that seemed to be the consensus at the informal, once-every-now-and-then, and extremely wonky gathering of Neal Peirce's Citistates Group , currently going on at a mountain resort near the Pennsylvania, Maryland, and West Virginia border. (The event is being held at The Summit Inn near Uniontown, Pennsylvania – giving the participants a first-hand view of early American infrastructure, as the inn is located at the last summit on the 19th Century "National Pike" that connected the Potomac and Ohio rivers.) Perhaps the most compelling argument against policy was presented by a leading transportation policy wonk, Sam Seskin of Portland. Portland is the subject of a lot of attention because it is the only U.S. metropolitan area where VMT has actually gone down. It's down 10% in the last 20 years. But Seskin said that half of the decline is the result of increased gas prices in the last two years – so all the aggressive policy and regulation in Portland has accounted for only a 5% decrease in VMT in the last 20 years. Clearly, that's not enough. Or maybe a better way to say it is that it's not nearly enough considering the amount of political capital and policy wonkiness expended in the process. So how else do we go after this? By presenting a positive alternative lifestyle that focuses on "high efficiency and low impact," at least according to all-purpose policy wonk Marc Weiss and economist Doug Henton. How can people get a lot done – and also enjoy life – while consuming fewer resources in the process? As Weiss, who's promoting the idea of "climate prosperity," put it, people need to believe that "you can get richer by being greener" and "you can get more by using less". The most compelling vision of the suburban age – a vision that comes again and again at meetings like this one – is Futurama , the car-oriented vision of 1960, put forth by General Motors, that was the biggest hit at the 1939 World's Fair in New York. As Weiss noted, Futurama gave people a vision of the future that they wanted. That's a big contrast to the typical wonky discussion of planning policy, which has a kind of "eat your peas" undertone: Driving a sports car might be fun, but you're destroying the world and you should really take the bus instead. So what's the Carbon-Free Futurama? Can you really create a compelling alternative vision for the future that's about walking and bicycling and golf cart type vehicles and so forth? Maybe it's hard for my generation to imagine – and the Citistates Group consists of a lot of old fogies like me. But for the emerging generation – which really does believe that their world will be destroyed unless we go carbon-free – maybe the ideal looks different. I've asked my 17-year-old daughter about this, and I'll get back to you on it. -- Bill Fulton

I get no pleasure out of writing that the most important corner in downtown Redding is soon going to have a vacancy. The corporate honchos in Seattle decided that the Starbucks at the corner of California and Placer streets in downtown Redding will close. The Starbucks with a drive-through window at the edge of downtown? That one stays. So does the Starbucks at the other end of downtown inside of Safeway. But the coffee house at the most visible corner in downtown? The store that was supposed to anchor a cornerstone adaptive reuse project? It's closing. Five months ago, one of downtown Redding's most popular lunch spots closed. Cheesecake's Unlimited had served up salads, sandwiches and other goodies for 17 years. A story in the Record Searchlight newspaper suggested that the local owner, who lost a business partner last year, could no longer keep running two restaurant locations. So he decided to stick with his restaurant across town (located in a strip center between Safeway and a Lowe's big box) and close the original downtown lunch spot. Interestingly, the owner said that a new Shasta College branch located half a block away did not increase his business. That has to be a difficult for downtown boosters to accept, because the attractive community college facility, although small, was supposed to be a "catalytic" project for downtown. As many of you know, Redding is the city closest to where I live. I'd love for it to be an exciting, lively place, but it's not. Boosters argue that downtown is "getting better." I appreciate their enthusiasm, but I can't agree with them. About the same time that Cheesecake's closed, an independent CD, record and paraphernalia shop shut down. Last year, a family-owned men's clothing store closed after decades in business. A Subway was supposed to replace the clothier, but project proponents now say the sandwich shop is doubtful. At the site of the soon-to-close Starbucks, a property owner invested millions on an adaptive re-use project. But once Starbucks closes, only a small clothing store and the property owner's cosmetics business will remain amid the empty storefronts. Redding's downtown mall is still some sort of bizarre joke that must be seen to be believed (although it is undergoing an overhaul that may have promise). Last year, when we ranked downtown Redding the second most disappointing among mid-sized cities in California, some people in City Hall took it as a knock on their redevelopment efforts. Maybe it was, but downtown Redding's failure is far too complete for only the government to get the blame. Property owners and merchants deserve large shares, too. Ultimate responsibility, though, lies with the community. Redding is a town where people rush to the newest franchise restaurant. Earlier this year, they lined up overnight for the opening of a Chipotle in a rebuilt strip center. Seriously. It's a town where Wal-Mart, Costco, Target and Home Depot have big boxes within walking distance of each other – although you'd take your life in your hands trying to make the trip on foot. In other words, most people who live in Redding don't care about having a vibrant, walkable downtown full of local flavor. And no one – including an urban planning journalist who thinks he knows better – can make them care. – Paul Shigley

A logging plan and endangered species permit that were part of the Headwaters Forest deal approved by the state in 1999 have been invalidated by the state Supreme Court. The court rejected the "sustained yield plan" because the California Department of Forestry and Fire Protection (CDF) improperly deferred final preparation of the plan to Pacific Lumber Company (Palco) and because the court could not identify which documents constituted the plan. The court threw out a permit allowing the "incidental take" of protected species because of a "no surprises" clause that prevented the Department of Fish and Game (DFG) from imposing new mitigation measures to reflect changed or unforeseen conditions. The unanimous state Supreme Court decision may be more important for the precedents it sets – especially on the no surprises question – than for its impact on the Headwater agreement and Palco. The logging company has been operating under different logging plans since a trial court judge rejected the sustained yield plan in 2003. Furthermore, a bankruptcy court in June gave control of Palco to Mendocino Redwood Company of Ukiah. The decision "is without practical effect for us," Palco General Counsel Frank Bacik told the Eureka Times-Standard . But the court's ruling regarding the no surprises clause included in a state endangered species permit could have ramifications beyond the redwood forest. The court ruled that the no surprises clause in a 50-year permit issued under the California Endangered Species Act (CESA) was illegal because it prevented DFG from imposing additional mitigation measures that may be required by new circumstances or if the original mitigations are found to be inadequate. " he Legislature intended that a landowner bear no more — but also no less — than the costs incurred from the impact of its activity on listed species," Justice Carlos Moreno wrote for the court. "To the extent that the changed and unforeseen circumstances provisions of the incidental take permit exempt landowners from this obligation, they exceed DFG's statutory authority under CESA." "Particularly in light of the 50-year duration of the permit, provisions that freeze Pacific Lumber's obligations to mitigate in the face of changing circumstances, even when these circumstances are labeled ‘unforeseen,' cannot comply with the statutory mandate," Moreno wrote. The Sierra Club and the Environmental Protection Information Center (EPIC), which brought the lawsuit, praised the decision for providing necessary species protection. But Paul Weiland, a building industry attorney with Nossaman, Guthner, Knox & Elliott who filed an amicus brief regarding the species permit, said the ruling may discourage regional habitat planning. "What we learned is you can get no surprises if you do a natural communities conservation plan," Weiland said. "But if you get a permit under CESA, Fish and Game doesn't have the ability to give you no surprises. It's going to be one less incentive for people to engage in these types of conservation efforts." Pacific Lumber did not prepare a natural communities conservation plan (NCCP), which is authorized by state law. Instead, the company received approval for a habitat conservation plan (HCP), which is authorized by federal law. The state based its incidental take permit for the endangered marbled murrelet and the threatened bank swallow on implementation of the HCP. Weiland said NCCPs are typically more difficult and time-consuming to prepare than HCPs because the former deals with all plants and animals in a planning area, while the latter focuses only on the needs of protected species. The ruling may cause landowners to walk away from the HCP process and simply get permits addressing individual species on individual pieces of land, Weiland predicted. In the late 1990s, Congress and the state Legislature authorized the Headwaters deal, under which the federal and state governments paid Palco $480 million to acquire the 7,000 acre Headwaters Forest of old-growth redwoods. The deal also set a March 1, 1999, deadline for Palco to get all necessary approvals for logging its remaining 200,000 acres — including the HCP and sustained yield plan (SYP). After state agencies issued all approvals, EPIC and the Sierra Club filed a lawsuit against CDF and DFG challenging the SYP, the incidental take permit, a streambed alteration agreement and California Environmental Quality Act findings. In a separate lawsuit, the United Steelworkers of America challenged the SYP. (The union represents workers at five Kaiser Aluminum factories owned by Palco's parent, Maxxam.) Humboldt County Superior Court Visiting Judge John Golden in 2003 ruled almost entirely for the environmentalists and labor union. More than two years later, the First District Court of Appeal overturned the lower court, ruling almost entirely for the state agencies and Palco (see CP&DR Environment Watch , March 2006 ). The case then went to the state Supreme Court, whose July 17 ruling is closer to the trial court's decision. The state high court rejected the SYP in large part because it could not identify the plan. A sustained yield plan "is kind of a master plan for logging a large area," the court explained. Specific timber harvest plans are used to carry out the SYP. Palco argued that the SYP was found in Appendix Q of the Environmental Impact Statement/Environmental Impact Report (EIS/EIR) for the entire project. But CDF said the SYP was contained in letters of approval signed by the department director on February 25 and March 1, 1999. The court determined the plan could not be Appendix Q of the EIS/EIR because "voluminous supplemental information" submitted by Palco to CDF was not contained in the appendix. And the letters of approval refer to ambiguous portions of the EIS/EIR and other agency approvals and delegated the task for determining the final contents of the SYP to Palco, which apparently never completed the task. " asic confusion about the contents of an unconsolidated SYP scattered over a voluminous administrative record does not allow the public and decision makers to readily know those contents and use the SYP for the purposes for which it was intended," Moreno wrote. The court also agreed with environmentalists and the labor union that the watershed analysis for the SYP was based on areas so broad that particular impacts of the planned timber harvest could not be adequately identified. On the issue of no surprises, the court explained that the incidental take permit prevented state agencies from imposing mitigations beyond those contained in the HCP, even if circumstances change — and even if circumstances change as a result of timber harvests. The court said that the provisions went too far. The "types of regulatory assurances at issue here" are best provided through the NCCP process, and not through employment of CESA provisions, the court concluded. The court upheld the streambed alteration permit, various CEQA findings and a cumulative impacts analysis. The court sent the case back to the trial court for further proceedings regarding remedies for the invalid SYP and the incidental take permit. The Case: Environmental Protection Information Center v. California Department of Forestry and Fire Protection , No. S140547, 08 C.D.O.S. 9147. Filed July 17, 2008. The Lawyers: For EPIC: Sharon Duggan, (510) 271-0825. For CDF: William N. Jenkins, attorney general's office, (415) 703-5519. For Pacific Lumber Company: Frank Bacik, Carter, Ogelsby, Momsen & Bacik, (707) 764-4212.

A case involving Santa Cruz County's second unit ordinance has been returned to the Sixth District Court of Appeal by the state Supreme Court because the county has amended the ordinance. The county has asked the court to dismiss the case entirely because the county has eliminated the ordinance provisions in question, Deputy County Counsel Dwight Herr said. Those provisions dictate rent levels and who may occupy a second unit. Three years ago, the state Supreme Court reinstated property owner Steven Travis's lawsuit challenging Santa Cruz County's second unit permit conditions, which restricted occupancy to low-income people, senior citizens or family members, and which imposed sliding-scale rent controls. Travis tried to challenge the ordinance on which the conditions were based, but courts ruled his lawsuit was filed too late. However, the state Supreme Court ruled in Travis v. County of Santa Cruz , 33 Cal.4th 757 (2004), that he could bring an "as applied" challenge to the restrictions (see CP&DR Legal Digest , September 2004 ). The litigation returned to Santa Cruz County Superior Court, where Travis argued that the permit conditions violated state laws regarding fair housing and rent control. The Superior Court ruled against Travis, but the Sixth District ruled that the ordinance's preference for senior citizens was impermissible age discrimination. Once again, the state Supreme Court accepted the case for review. In May, however, the county adopted measures streamlining numerous planning processes, including revisions to the second unit ordinance, according to Herr. Planners had determined that the original provisions of the ordinance regarding occupancy and income levels were too difficult to enforce, so the county removed those provisions, Herr said. In July, the state Supreme Court returned the case to the appellate court in light of the revised ordinance. The case is Travis v. County of Santa Cruz , No. H029771.

Is California running out of water? Or are we just running out of political will? It is easy, as I did over the weekend, to contemplate life alongside a rushing creek in the Eastern Sierra and assume that there is enough water in that creek – and others like it throughout the Sierra – to provide for California as it hurdles toward 50 million people. So is it possible, as my old planning professor Cary Lowe warned in the Sunday L.A. Times , that the current drought may lead to "the end of growth" and "the end of the state as we know it"? The Times seems to carry the California-is-running-out-of-water story every three months or so. But it's almost always presented as a natural resources issue: there isn't enough water anymore! It's rarely presented the way it should be – as a political question. California doesn't have an infinite amount of water, but we do have a lot of water sloshing around the system. There's probably enough to handle another generation of growth. The question is who gets to use the water, and for what. But few of the players have much political motivation to frame the issue this way. To be fair, Lowe, a longtime developers' lawyer in the Inland Empire and San Diego, did frame the current drought as a consequence of global warming, something I haven't seen too many times before. And the article raised the question squarely about how California – especially Southern California – will manage future growth in population and economic activity without importing any more water from the outside. But what does this mean? Does it mean that we can't accommodate any additional people or businesses in Southern California? Or does it mean we all have to take Navy showers forever? For a lot of people – especially slow-growth activists – the answer is clearly that population should not increase anymore. The slow-growthers often use environmental arguments to back up their position – for example, the idea that each natural system has only so much "carrying capacity" and that carrying capacity cannot be exceeded. They're not interested in portraying the water issue as a question of priorities and allocation, because what they're really fighting is not water but population growth. This kind of argument – common in California since the 1970s – makes what I call the "Dowell Myers mistake" about the future. Myers , a demographer and planning professor at the University of Southern California, often says that in thinking about the future, people assume that it will be just like the present only bigger . If people live on quarter-acre lots with big lawns now, then the future will consist of more quarter-acre lots with big lawns. Rarely, Myers says, do people ever imagine that the world will not be bigger than the present but, rather, different . In the future, maybe everybody won't live on a quarter-acre lot. Lowe's article in the Sunday Times implicitly makes Myers' point by noting that imported water supplies in Southern California, currently 2.1 million acre-feet per year, have not increased in almost 20 years. Although Lowe didn't say this in his piece, during that time Southern California's population has grown by several million people. Somehow or other, the rubber band is bending. The same amount of water is being stretched to serve more people. How? Is it because we are all taking Navy showers – which, I think, slow-growthers often see as the grim and unpleasant alternative to stopping population growth? To some extent, yes. When people pay more for water – and water prices have been going up – they use less of it. More importantly, however, California has survived for the last 20 years on a finite amount of water by reallocating the water already in the system. As Lowe implies in his article, this is a much more effective and far-reaching way to achieve "conservation" than Navy showers. In my book The Reluctant Metropolis , I told the story of how cities and environmentalists began during the 1990s to gang up with each other in order to take water away from the state's farmers, who use the vast majority of it. Although I told the story largely as a tale of political power, there was an economic aspect to it as well. Farmers can use less water – freeing up most of what we need in California for the foreseeable future – but in order to do so, they must make major capital investments or change their cropping patterns. Farmers are accustomed to being a politically powerful lobby, and they don't want the government squeezing them about what they can grow. So, no less than the slow-growthers, they don't have much motivation to present the water question as an issue of priorities either. Like the rest of the United States, California lives with a system of capital infrastructure – water, transportation, electricity – that assumes energy and natural resources are cheap and we can waste as much as we want. Many farmers can move toward more efficient irrigation practices, but they are currently stuck with decades-old irrigation systems that aren't very water-efficient. The money for these needed capital investments comes from the cities, which can afford to pay far more for the water than the farmers. Farmers don't like the idea that cities can outbid them for water and essentially bribe them to conserve, but it's better than the alternative – having the Legislature get into the business of zoning cropping patterns. If you really wanted to save water, you could prohibit or restrict the growing of such water-intensive crops as rice, cotton, and alfalfa (which is not only thirsty but also low-value). But that's the farmers' equivalent of mandatory Navy showers. With water – as with so many other environmental issues in this age of global warming – our best hope lies not with stopping other people from crossing the border, or from taking Navy showers, but with making wise capital investments that will allow us to use that water more efficiently. Farmers may not want to change their decades-old practices to use less water. And slow-growthers may not want to give up the carrying capacity argument and admit that we can accommodate more people without more water. These are issues of political will. They force us to ask not whether we can use our resources more efficiently, but whether we want to. – Bill Fulton

A local agency formation commission may alter the boundaries of a proposed new city beyond those drawn by incorporation proponents, according to a state attorney general's opinion. Deputy Attorney General Taylor Carey issued the opinion at the request of Sacramento County, which has concerns about the proposed incorporation of Arden Arcade. Specifically, the incorporation proposal excludes areas outside the county's Arden Arcade community planning area between the American River and Fair Oaks Boulevard. County officials are concerned because the exclusion of that area would create a thin peninsula of territory that would remain the county's service responsibility. Arden Arcade is an unincorporated area of roughly 12 square miles and 95,000 people just east of the City of Sacramento. Proponents submitted incorporation petitions in February 2007. Their proposal excluded the mostly residential strip south of Fair Oaks Boulevard where political support for creating a new city appears to be weak, said Peter Brundage, executive officer of the Sacramento County Local Agency Formation Commission (Sacramento LAFCO). County officials insist the new city must include all of the community planning area, so they requested the attorney general's opinion. The attorney general's office concluded that while the Cortese-Knox-Hertzberg Act "does not expressly authorize a LAFCO to change the boundaries of a proposed incorporation," the act does authorize a LAFCO to approve or reject an incorporation "with or without amendment." "Naturally, a LAFCO's authority to change proposed boundaries is not without limitation. To begin with, the act requires that any amendment to a proposal be ‘consistent with written policies, procedures and guidelines adopted by the commission,'" Carey wrote, citing Government Code § 56375 subdivision (l). "Additionally, a LAFCO may not amend a proposal in a way that changes the fundamental nature of the proposal. "Within these limits, there may be any number of reasons why a LAFCO would consider changing the boundaries of a proposed incorporation area. … " LAFCO may change the boundaries of a proposal to prevent ‘an overlap of service responsibilities and inefficiencies in service provision' or to ‘bring about a unified and accountable government.' Indeed, these purposes lie at the heart of the policy that underlies the entire local government reorganization scheme," Taylor continued, citing Curtin's California Land Use and Planning Law and Fallbrook Sanitary Dist. v. San Diego Local Agency Formation Com. , 208 CalApp.3d 753, 765 (1989). Three new cities have been established in Sacramento County since 1997 — Citrus Heights, Elk Grove and Rancho Cordova. For Citrus Heights, Sacramento LAFCO did some "minor tweaking" to shrink the boundaries, Brundage said. The commission excluded larger chunks from the proposed Elk Grove and Rancho Cordova city limits. With Arden Arcade, the commission might expand the boundaries. However, Brundage emphasized, the commission placed the incorporation proceedings are on hold in June while cityhood proponents raise money to pay for an environmental impact report and fiscal analysis. The process could resume next year with the goal of placing incorporation on the ballot in November 2010, he said. The attorney general's opinion is No. 07-206 and was published on June 27, 2008.

An unusual Coastal Commission mitigation fee to offset the impact of a private seawall has been upheld by the Sixth District Court of Appeal, which rejected arguments that the fee was unconstitutional, was prohibited by the Coastal Act and was the result of post hoc rationalization. The Commission determined construction of the seawall in Monterey would cause the erosion of 1 acre of beach over 50 years, or 870 square feet annually. The Commission calculated the recreational value of the lost beach based on the number of annual visitors and the amount they spend per visit to come up with an impact figure of $5.3 million. Using a 3% annual discount rate, the Commission imposed an impact fee of $2.15 million to be paid in five annual installments of $430,000. The court ruled that the fee passed both the Nollan nexus test and the Dolan rough proportionality test. Property rights advocates have decried the ruling, and the property owners involved asked the state Supreme Court to accept the case in July. The Ocean Harbor House Homeowners Association applied to the City of Monterey for a permit to construct a 585-foot-long seawall because storms, tides and shoreline erosion had been threatening seaward condos in the complex since the 1980s. The city prepared an environmental impact report, which concluded construction of the seawall would cause the beach to erode on either side, breaking the continuity of a two-mile-long beach. The city required the association to provide alternative lateral access through a parking lot, concluded the impact on recreation would be insignificant, and approved the permit. The homeowners association then headed to the Coastal Commission. The Commission staff prepared a report recommending a permit for the seawall and imposition of an in-lieu fee to buy an acre of beach property along southern Monterey Bay for public recreation. The staff proposed three methods of valuing the acre of beach: The cost of replacing an acre of sand ($1 million to $1.2 million), the cost of buying beachfront property ($1 million), and the "recreational value" method ($5.3 million). Although the staff recommended using the land-replacement method and imposing additional requirements, Commission members said the fee should be based on the value of the lost recreational benefits. Over the association's objections, the Commission approved the permit, the $2.15 million fee and other conditions in January 2005. The homeowners association sued, and Monterey County Superior Court Judge Robert O'Farrell ruled for the Commission. On appeal, a unanimous three-judge panel of the Sixth District upheld the lower court. The association argued that the exaction lacked the logical link, or nexus, with the impact of building the proposed seawall. A nexus is required under Nollan v. California Coastal Commission , (1987) 483 U.S. 825. The association contended the in-lieu fee was not tailored to the direct, on-site impacts of the proposed project, as buying beach property elsewhere would not mitigate loss of beach at the condominium complex. The association said the fee was similar to the easement that the U.S. Supreme Court rejected in Nollan because it was not related to the proposed house construction. The appellate court disagreed because the association's "view of the impacts of the seawall fails to recognize the loss of recreational use as a distinct impact. Nollan did not involve such an impact." " fee to purchase beach for public recreation has a logical tendency to mitigate loss of recreational use on the beach at the complex," Presiding Justice Conrad Rushing wrote for the court. " Nollan does not suggest that where a project has an unavoidable on-site impact that cannot be directly mitigated, the Commission may not require equivalent off-site mitigation." The association also argued the fee violated the rough proportionality requirement established in Dolan v. City of Tigard , (1994) 512 U.S. 474. Here is where the method of determining the fee came into question. The Commission based the fee in part on studies that found beach-goers in Huntington Beach spend an average of $13 per person per visit. The Commission used that figure, state park data showing 968,000 annual visitors to Monterey Bay beaches and 60.6 acres of beaches to determine the fee. The association argued this methodology was inappropriate because it was based on expenditures with local businesses and the tourism industry, and was not based on the loss of local sand. Thus, they argued, the fee was not roughly proportional to the seawall's impact. "Again," Rushing wrote in rejecting the argument, "homeowners fail to consider the loss of recreational use as a direct impact of the seawall and thus a proper focus of separate mitigation. … Although it would have been incorrect to measure that loss by the economic impact of an acre of beach, the Commission's analysis properly focused on the economic recreational value and relied on pertinent data concerning consumer surplus." The association also attacked the use of a study from Huntington Beach because of Monterey's differences in beach facilities and climate. But the court found that the study was appropriate and the Commission had evidence supporting the study's use. On the question of Commission authority for imposing the fee at all, the homeowners association argued that a portion of the Coastal Act (specifically, Public Resources Code § 30235) gave the property owners the right to build a seawall and permitted the Commission to impose only mitigations regarding the immediate impact to local sand supply. The court, however, said the Coastal Act's overall provisions for preserving natural resources and maximizing public access still applied. " he Commission has broad discretion to adopt measures designed to mitigate all significant impacts that the construction of a seawall may have," Rushing wrote. Finally, the association argued the Commission engaged in post hoc rationalization by first choosing the fee amount, and then adopting a valuation method to support that amount. The court rejected the argument, noting that the very first Commission staff report contained three potential ways to determine the fee, including the recreation value method the Commission ultimately selected. The Case: Ocean Harbor House Homeowners Association v. California Coastal Commission , No. H031129, 08 C.D.O.S. 6326, 2008 DJDAR 7603. Filed May 23, 2008. The Lawyers: For the homeowners association: Meriem Hubbard, Pacific Legal Foundation, (916) 419-7111. For the Commission: Christiana Tiedemann, attorney general's office, (510) 622-2100.