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.

An irrigation district that provides wholesale electricity may not begin providing retail electric service without approval of the Local Agency Formation Commission, the Third District Court of Appeal has ruled. In a related decision, the Third District also ruled that the irrigation district may not depose two members and the executive officer of the Local Agency Formation Commission (LAFCO) for the district's lawsuit regarding denial of the retail electric service application. Both decisions bolster the authority and integrity of LAFCOs. In 2005, the South San Joaquin Irrigation District sought approval from the San Joaquin Local Agency Formation Commission (SJ LAFCO) to provide retail electric service. The district already provided irrigation water service and wholesale electric generation and electricity marketing services. The district sells electricity from three hydroelectric dams to Pacific Gas & Electric (PG&E). The district proposed to acquire PG&E's distribution facilities through a negotiated purchase or eminent domain, and to sell the electricity directly to users. Not surprisingly, PG&E opposed the application and raised the question of whether this would be an appropriate use of eminent domain. Staff of the SJ LAFCO recommended approval of the application, but the LAFCO board voted 4-1 to deny it in June 2006. Although they officially rejected the proposal because the district "did not demonstrate its administrative, technical and financial capabilities to provide retail service to the satisfaction of the Commission," at least two commissioners focused on the issue of eminent domain. They did so despite a warning from the Commission's attorney that potential use of eminent domain could not be a factor in SJ LAFCO's decision. The irrigation district then sued SJ LAFCO, arguing both that the Commission's approval was unnecessary, and that retail electricity would not be a new service. The district also sought to depose Commissioners Jack Sieglock and Gary Giovanetti and Executive Officer Bruce Baracco (none of whom is still associated with the Commission). PG&E intervened in the litigation. San Joaquin County Superior Court Judge Elizabeth Humphreys ruled against the district, concluding that SJ LAFCO's approval was necessary for the special district to exercise a latent power such as providing retail electric service. While Humphreys based her decision on the administrative record, she also ruled that the district could depose Sieglock, Giovanetti and Baracco. The judge limited the inquiry to "all unprivileged information that the deponents had prior to June 15, 2006, including information obtained from third parties (including but not limited to PG&E), and what additional information the Commissioner deponents needed to recommend adoption of the staff recommendation to approve the project." The Commission, which had fought the deposition request, appealed the ruling on the depositions, while the district appealed the ruling on the application. The issue of LAFCO approval of the application centered on interpretation of legislation passed in 2001 — AB 948 (Kelly), which was essentially a cleanup of the 2000 overhaul of the LAFCO law known as the Cortese-Knox-Hertzberg Act (see CP&DR , September 2000 ). Among other things, AB 948 added §§ 56824.10 through 56824.14 to the Government Code. Those sections concern LAFCO proceedings "for the exercise of new or different functions or classes of services by special districts." The district argued that it has long had the right under the Water Code to provide retail electric services and, therefore, LAFCO approval was unnecessary. In a different line of argument, the district contended that the provisions in AB 948 were permissive, not mandatory. A three-judge panel of the Third District disagreed. It determined that retail electric service would be an expansion of the district's services. And the court ruled that interpreting the AB 948 provisions as permissive "would be nonsensical. There would be no point in establishing a detailed, timely and costly procedure for LAFCO approval if a disappointed applicant could simply disregard the decision of LAFCO and proceed with its plan to provide a new or different service." On the issue of depositions, the court ruled there was no reason to employ an exception to the rule that such suits are decided by reviewing the administrative record. "Limiting review to the administrative record is appropriate due to the scope of review," Justice Fred Morrison wrote for the court. "An action or proceeding to attack a determination of SJ LAFCO ‘extends only to whether there was fraud or a prejudicial abuse of discretion. Prejudicial abuse of discretion is established if the court finds the determination or decision is not supported by substantial evidence in light of the whole record,'" Morrison continued, citing Government Code § 56107, subdivision (c). The irrigation district argued depositions were necessary because SJ LAFCO appeared to base its decision on information not in the administrative record. But if that were true, the record would not support the decision and the court could overturn LAFCO, Morrison noted. Here, the district appeared to want to learn what additional information would change the commissioners' minds. "While the district argues there is some secret category of information it did not know was needed," Morrison wrote, "we read the commissioners' remarks as simply stating they were not persuaded by the district's proposal. The denial was on the merits. If the district had a stronger case to make, reasonable diligence required the district to make that case at the hearing." The Cases: South San Joaquin Irrigation District v. Superior Court , No. C056661, 2008 DJDAR 5703; San Joaquin Local Agency Formation Commission v. Superior Court , No. C056463, 2008 DJDAR 5708. Both filed April 22, 2008. The Lawyers: For the district: Martin Fineman, Davis Wright Tremaine, (415) 276-6500. For SJ LAFCO: Daniel Schroeder, Neumiller & Beardslee, (209) 948-8200. For Pacific Gas & Electric: Michael M. Berger, Manatt, Phelps & Phillips, (310) 312-4000.

A bomb detonated in my front yard at 3:30 a.m. on June 21. Actually, it was an explosive from the sky in the form of lightning, and it was the start of an electrical storm that continued for 11 hours. Nearly three weeks later, firefighters are still battling blazes sparked by that lightning in the mountains and canyons around me. My house has remained safe, but residents of hundreds of other houses in the area have evacuated. One question that comes to mind during a crisis like this is whether these houses — including mine — should even exist. If legislation proposed in Sacramento had been approved 40 years ago, the houses probably would not be here. I live in a high fire hazard zone in Shasta County. My lot and three others were created with a four-way parcel split during the 1970s. I'm guessing that the provision of fire services was just assumed by everybody at the time. We have a very small volunteer fire department, but it's the California Department of Forestry and Fire Protection (CDF or Cal Fire) that is responsible when blazes erupt. The typical practice in counties across the state has been to leave fire protection of the countryside up to CDF . But nowadays, CDF's annual firefighting budget is approaching $1 billion. When you're in the vicinity of a large wildland fire, you understand why: You see the thousands of firefighters, the armadas of heavy equipment and the array of aircraft that go into action against a wildfire. Those of us who live in this kind of state responsibility area (SRA) are thankful that state taxpayers subsidize our fire protection. But the free ride may be over for us soon. And we might not get many more neighbors. It appears possible that the state budget deal could include some sort of new funding for CDF, either in the form of a surcharge on insurance premiums or a direct assessment on property owners. A homeowner like me might pay something in the neighborhood of $50 a year. Several pieces of legislation seek to limit development in SRAs. Assembly Bill 2447 (Jones) would prohibit a county from approving a subdivision or parcel map in an SRA or a very high fire hazard severity zone unless the responsible fire agency — it will almost always be CDF — verifies in writing that adequate structural fire protection will be available, and the Board of Supervisors makes findings regarding fire-safe structures, road access and emergency water systems. Who supports AB 2447? Unions of firefighters — the men and women who are working in 110-degree heat and brutally smoky conditions to protect houses like mine. Who is against AB 2447? County governments, specifically my county's Board of Supervisors, that approve the houses these firefighters are trying to preserve. The bill has passed the Assembly. Senate Bill 1500 (Kehoe) would require areas with an average residential density exceeding three dwellings per acre to be removed from an SRA, meaning a local agency would have to provide fire protection. This policy would be an enormous change that would discourage development on the exurban fringe and in resort areas — places with medium density housing that have long relied on CDF. A different Kehoe bill (SB 1764) would require a local agency to receive certification from the state fire marshal before the state would pick up more than 75% of disaster-related costs. Opponents, including San Diego County, argue the bill's language would prevent communities from relying on volunteer fire departments. I should note that San Diego County is only now beginning to take steps to implement proposals stemming from the tragic 2003 Southern California firestorms for creation of a countywide fire department and new fire taxes. The point of all the legislation is to change the business-as-usual approach and force counties to take more responsibility for fire safety. The choice is to enforce fire-safe development and building practices, and establish and fund local fire departments, or to prohibit development in fire-prone rural areas. As I look out my window at a procession of helicopters flying through skies full of smoke and ash, I can't argue against those ideas. – Paul Shigley

The Calaveras County Community Development Agency is in the political cross-hairs after the county grand jury issued a scathing report that questions the agency's hiring practices, the director's management style and the use of consultants. Sound familiar? Not the details, but the tone. Your local newspaper has probably struck similar notes recently. That's because it is the season for grand juries to release their annual reports on local government. Every county has a civil grand jury that investigates local government policies and practices. Grand jury terms follow the July-through-June fiscal year. Jurors are selected from a pool of volunteers by a Superior Court judge, who also oversees the panel's investigations. Retirees with time on their hands and younger people seeking to build a base on which they may run for office are heavily represented on grand juries. OK, that last comment was a cheap shot. I should warn you that it might not be my last. When I was in the newspaper business, we eagerly anticipated the release of the grand jury report. It typically provided fodder on government incompetence, corruption and stupidity with which we could fill the news pages for several days. When agencies targeted by the grand jury issued formal written responses a month or two later, we could rehash it all. But it didn't take too many rounds of this drill before I began questioning grand juries themselves. Some of them were well-meaning, while others appeared to have less-than-honorable motives. Overall, they struck me as groups of self-appointed experts (those of us who have worked in newsrooms can identify with groups of self-appointed experts) who issued sweeping condemnations and recommended practices that had already been dismissed for good reason. The terms "half-baked" and "witch hunt" came to mind frequently. My suspicion only grew when I tried to ask questions of various grand jury foremen. Grand jury reports can be vague. Who, I wanted to know, did the grand jury interview? What project specifically is in question? Which jobs are filled with political cronies? Which consulting contract is a waste of money? The county administrator/city manager/executive director says the grand jury never asked him about this. Why not? Invariably, the grand jury foreman would say state law prevented him or her from talking publicly. The report spoke for itself, he or she would say. And yet I would read grand jury reports from other counties that were far more specific. They would say exactly who was interviewed and which background documents were studied. Some of those reports named names. Government officials' often respond to grand jury reports with something along the lines of, "You morons are too ignorant to understand how government works." OK, not in so many words, but the point gets made, and the response isn't any more helpful than the grand jury report itself. I should be careful here. I have, in fact, read grand jury reports that were detailed and thoughtful, and which helped improve government effectiveness. That's the way the process should work. So which is the Calaveras County grand jury report on the planning and building agency — thoughtful and useful, or half-baked and harmful? It's hard for me to tell. The two sections concerning planning are very short and provides no context. Recommendations such as "The Director enroll in an accredited educational institution and obtain a Certified Planner Certificate" don't give me confidence. What in the world is a Certified Planner Certificate? I do know that land use politics in Calaveras County are difficult. The county's decision to hire Stephanie Moreno two years ago to serve as community development director was out of the ordinary. Moreno is a former Amador County supervisor who had been working as an analyst in the Monterey County Division of Child Protective Services before she took the Calaveras County planning job. ------ News update ------ Stephanie Moreno has resigned as Calaveras County community development director as of August 1. Read and listen to her interview with the Stockton Record here . -------------------------- It became clear immediately that she didn't accept business as usual. She fired the longtime building official, who was well-loved by contractors. She hired the respected Mintier & Associates to help with a troubled general plan update. She rubbed people the wrong way. The grand jury makes a number of allegations. The county administrator, who has been on the job less than a year, is denying the charges. The Board of Supervisors appears divided 3-2. And once again we have a grand jury report that provides far more heat than light. - Paul Shigley

Joel Kotkin is at it again. In yesterday's Los Angeles Times Sunday opinion section , the enfant terrible of L.A. urbanism dissed the "suburbs as slums" thesis of Brookings' Christopher Leinberger. But in once again coming to the defense of "suburbs", he has revealed that he can't tell the difference between Glendale and Palmdale. For the last year or so, Leinberger has been trumpeting the idea that "Walkable Urban Places" – he sometimes calls them WUPs – are likely to have a competitive advantage over suburban driving neighborhoods in the decades ahead. As Leinberger himself admits, his methodology is a bit ragged . Still, he has a point. The job-rich city neighborhoods and inner suburbs that childless professionals favor, especially those with access to rail transit, are on the rise – and they are doing well in the current real estate downturn. More recently, Leinberger suggested in the Atlantic Monthly that not only will the WUPs have a competitive advantage going forward, but that auto-oriented suburbs will become the new slums – especially starter-home suburbs like Elk Grove in Sacramento and the Victor Valley in Southern California, which have been hammered hard by the subprime mortgage crisis. This was apparently too much for Kotin, who responded in Sunday's Times with a screed that once again came to the defense of the "suburbs" against the "city". In a similar fashion to last summer's debacle – when he decried Pasadena-sized densities as "Manhattanization" – Kotkin has now confused Glendale with Palmdale. He argued that Leinberger is wrong because people and jobs are not flowing to Downtown Los Angeles in huge numbers. He claimed that Leinberger and his sympathizers base their research mostly on anecdotes, rather than facts. And he concluded that "rather than cramming more people and families into cities," high energy prices and similar trends "may instead foster a more dispersed, diversified archipelago of self-sufficient communities." As examples he lists Burbank, Ontario, and West L.A. – all job-rich "suburbs" where commutes are shorter than they are in inner-city L.A. Take that, Leinberger! Except that Leinberger, like practically every other advocate of urbanism in America, agrees with him. In a Brookings paper last year – admittedly qualitative in its approach – Leinberger took a stab at identifying WUPs in the nation's 30 largest metropolitan areas. He came up with 15 existing or emerging WUPs in the Los Angeles area, including … Burbank, Glendale, Century City, Westwood, Culver City, and Beverly Hills. In other words, he included all the "suburbs" that Kotkin is always defending against the "city". The inescapable conclusion is that Kotkin is about 30 years out of date. His mind lives in a ring of older suburbs that circle downtown L.A. – Burbank, the San Gabriel Valley, the Westside, Irvine, all built between the 1920s and the 1960s as residential suburbs. Kotkin always casts the "urban v. suburban" battle as a battle between Downtown Los Angeles and these "suburbs". But Burbank and Westwood are no more suburbs than is Downtown. And the Americana at Brand, Rick Caruso's new mixed-use project in downtown Glendale, may seem manufactured – but it's definitely not suburban. Why can't Kotkin see that these are emerging as urban places in their own right, with diversity and liveliness and jobs and amenities and all the things that are driving the yuppies to the WUPs, as Leinberger keeps saying? And has Kotkin ever even been to Palmdale or Victorville or Hemet? These are the emerging slum suburbs created by the subprime fiasco. Over the last year or so, Kotkin the great expert on cities has been strangely silent about them. Maybe it's about time he visited some of these places. It's really not that hard, especially for a fan of auto-oriented suburbs. All Kotkin has to do to find Palmdale is get on  the Hollywood Freeway near his house and head north – up the 170 freeway, then I-5, and the 14 freeway – for about 60 miles. Maybe when he returns to Valley Village, he'll feel safely ensconced in suburban living because he has a back yard with trees. But at least he will have spent a little time out in a real suburb. -- Bill Fulton

It was a little after 10 p.m. on a pleasantly warm Thursday evening in downtown Modesto when a member of the kitchen staff at the Firkin & Fox pub started gathering his belongings. "Hey, are you leaving?" a waitress asked the kitchen hand as he headed out the door. "We may need you. It's Thursday . Remember how we got slammed last Thursday night?" That's right, Thursday nights are jumping in downtown Modesto. So are Friday and Saturday nights, and some other evenings depending on local events. On this Thursday evening, metal bands attracted a colorful young crowd to the Fat Cat, just half a block from Firkin & Fox. Elsewhere, the sounds of hip-hop bands pulsed from multiple nightclubs. Comics entertained at St. Stan's brewpub. An upscale cigar shop and several white tablecloth restaurants drew a more refined crowd. The 18-screen Brenden movie theatre on 10th Street did brisk business. And all of this activity occurred on an evening when the largest entertainment facility in downtown was dark. The idea that downtown Modesto would be an entertainment and dining center would have induced laughter as recently as eight years ago. Now, the goal is to build on success with more commerce and — importantly — provide places for people to live downtown. There is still a long way to go. The housing market has crashed in Modesto as hard as anywhere in the country, making construction of housing units very uncertain. And while commerce clearly has bounced back in downtown, there remain empty storefronts in key locations, including right across the street from the $47 million Gallo Center for the Arts, which opened last year. "Redevelopment has three stages," said Linda Boston, Modesto Redevelopment Agency manager. "It has the pioneer stage, it has the teenage stage, and it has the adult stage — and, as you know, a lot of pioneers died." In other words, a number of downtown redevelopment efforts from the late 1980s and the 1990s failed. But downtown Modesto seems to have passed the adolescent stage and is now in the teenage years — full of life but rather unpredictable. It could grow up to be a success, or it could make some bad choices and fail. This feeling that things could still go either direction is one reason the redevelopment agency adopted a new redevelopment master plan in October 2007. The document is intended to be a guideline that was prepared in response to numerous inquiries from potential investors, Boston said. "We didn't realize how many folks were out there waiting in the wings. They want investment insurance, and that's really what this plan is," Boston explained. It was 1973 when Modesto native George Lucas made his town famous with the movie American Graffiti . The enormously popular flick captured the cruising scene in Modesto circa 1962. It was telling, however, that Lucas filmed most of the movie in Petaluma because he thought Modesto had changed too much since his youth. In fact, Modesto authorities had outlawed cruising, which locals actually called "dragging." Soon thereafter, Vintage Faire Mall opened several miles north of downtown. By the mid-1970s, downtown Modesto, which had thrived for decades, was a dead zone. The city created a redevelopment agency in 1983 with an original project area of three blocks, according to Boston. The project area grew to 2,000 acres, including all of the large downtown area, in 1991. The original project involved development of a hotel, the convention center and a parking lot along K Street. The project struggled mightily for years and everyone involved appeared to suffer financially. Still, Boston defends it as a "catalyst project," and the hotel, now operated by Doubletree, remains the tallest building in town. Next up was development of Tenth Street Place on the site of two abandoned hotels and other dilapidated structures. The project includes a joint City of Modesto-Stanislaus County government center, a parking structure, retail spaces and the Brenden theater. Downtown appeared to turn a corner when the project was completed in 1999. Prior to the opening of Tenth Street Place, Boston recalled, "women would never come down here, even in groups of four or five. We just didn't feel safe." Tenth Street Place was a crucial downtown redevelopmet project. The redevelopment agency has continued to invest. Among other things, it has provided a parking garage for an office building mostly leased by the county, put $500,000 into a façade improvement program, and funded the streetscape around the Gallo Center. Essentially, the agency completed every project in a 1994 redevelopment plan, Boston said. Chris Ricci, who owns the Fat Cat nightclub and produces an annual music festival that covers 15 blocks of downtown, said the city should be more directly involved in assisting businesses. In Las Vegas, where Ricci also does business, local government provides direct subsidies to businesses that generate revenue, he said. But that is not how Modesto operates, and local officials make no apologies. The 1994 plan called for making downtown a venue for the arts and entertainment, and officials love to cite this statistic: In 1999, there were a dozen places to eat downtown. Now, there are about 60. In addition, a collection of dive bars has been largely replaced with nightclubs and more upscale watering holes. The agency has not provided direct subsidies for these businesses, instead choosing to set the stage for private entrepreneurs such as Ricci. Last fall, the Gallo Center for the Arts opened. Funded by Stanislaus County and private donors, the facility has a 1,200-seat concert hall and a 444-seat second stage. Although the facility is clearly a cornerstone of downtown redevelopment, the City Council in 2000 actually decided not to fund construction. Instead, the city placed on the ballot a hotel tax increase to help fund for the project; the ballot measure failed, partly because councilmembers campaigned against it. So it is a county-owned arts facility with a $15 million private endowment, including $10 million from the Gallo family. The redevelopment plan approved last fall covers not just downtown, but the entire 2,000-acre project area. It focuses on economic development, changing land uses, improvements to the public realm, and transportation and circulation upgrades. Brent Sinclair, the city's community and economic development director, said the plan is intended to help guide potential housing development. The plan identifies opportunity sites, including some within walking distance of a multi-modal transportation center. In addition, the city may implement a mixed-use overlay zone or possibly a form-based code to further enable housing development, he said. New housing has not been built downtown in more than 30 years. The redevelopment agency has focused its low- and moderate-income housing set-aside monies on areas away from downtown, and private developers have not been willing to take the risk. That could change. The agency has proposed an affordable housing project at 17th and G streets on the northeast edge of downtown, and a market study estimated downtown could accommodate 500 to 750 market-rate units. Four local business entities calling themselves Team Modesto propose a seven-story, mixed-use building on a block of 10th Street owned by the Redevelopment Agency. The building would have ground floor retail with 75 condos above. The project, however, appears to have stalled. Another proposed project — a combination office and residential condo tower at 14th and J streets — is on hold, according to Modesto attorney Bart Barringer, whose law firm owns the property. The project simply is not feasible at a time when the median home price in Stanislaus County has dropped 45% in three years to $215,000. "These economic times are causing us an awful lot of consternation over just what to do and when to do it," said Barringer, a member of the Downtown Improvement District board who called residential development "the next logical step" for downtown. "If we would have started this eight years ago, we would have sold the units and we'd look like geniuses. If we had started them three years ago and have them come on line right now, we'd be in the poorhouse." While housing may be a ways off, public improvements go forward. One of the most important may be planned streetscape improvements along Ninth and Tenth streets to create a connection from downtown to a bluff-top park overlook and to Tuolumne River Regional Park itself. Development of the park is a $20 million project, the first phase of which is complete, according to Doug Critchfield, of the city's Department of Parks, Recreation and Neighborhoods. Contacts: Linda Boston, Modesto Redevelopment Agency, (209) 571-5179. Brent Sinclair, Modesto Community Economic Development Department, (209) 577-5228. Bart Barringer, Mayol & Barringer, (209) 544-9555. Redevelopment master plan: www.modestorda.com/documents/masterplan.asp