The Ninth Circuit has declined to decide a takings case brought by developers whose property the Los Angeles Community Redevelopment Agency (CRA) has acquired through eminent domain for economic development. M&A Gabaee, a partnership of real estate developers, owns the two properties on East Slauson Avenue where the CRA wants to develop a shopping center. However, in December 2003, CRA signed a development agreement with Slauson Central to develop the sites. The CRA then started separate eminent domain processes for the two properties. M&A Gabaee responded by suing in federal court, arguing that taking the property for economic development was not a valid use of eminent domain authority. (In June, the U.S. Supreme Court issued its most controversial land use decision in years when it ruled that the government may use eminent domain for economic development purposes.) However, the Ninth Circuit declined to hear M&A Gabaee’s argument, ruling that the federal courts should abstain because there is a parallel action in state court. The landowner pointed out that it filed a second federal lawsuit one day before the CRA commenced its second eminent domain action, and it filed its first federal lawsuit before anything of substance had happened yet with the CRA’s first eminent domain suit. The court essentially turned those arguments around. What mattered, the court ruled, was that state court action was ongoing with regard to one property, and nothing of substance had happened in the second federal lawsuit when the CRA started condemnation proceedings for the second property. Because that was the situation, federal courts must abstain, the Ninth Circuit ruled. The case is , No. 04-55888, 05 C.D.O.S. 7332, 2005 DJDAR 9993. Filed August 17, 2005.

Ten years ago , conditions in the Sacramento-San Joaquin River Delta were grim. Fish populations were crashing, forcing shutdowns of the giant pumps that send fresh water south from the Delta to Central Valley farms and Southern California cities. The levees protecting those critical pumps were in danger of collapsing. And a giant tug-of-war was under way between urban agencies, rural irrigation districts, environmentalists, farmers and fisheries experts over who was to blame. Out of that tumult was born the Cal-Fed Bay-Delta Program, intended as a mechanism for collaboration among those interest groups on an ambitious program of water-supply and ecological restoration projects. Ten years and $3 billion later, here’s where things stand in the Delta today: Fish populations are crashing. the levees protecting the huge state and federal pumps are in danger of collapsing, and a tug-of-war is brewing between urban agencies, rural irrigation districts, environmentalists, farmers and fisheries experts over who is to blame. The seeming lack of progress has not gone unnoticed. As it begins its second decade, Cal-Fed is suffering an identity crisis, and critics are multiplying. Many are the same policy experts and political leaders who originally championed the unusual state-federal partnership as a welcome alternative to litigation and bureaucratic paralysis — a paralysis they now believe has infected Cal-Fed itself. “If I had do sum up why I believe Cal-Fed has strayed from its course,” former Gov. Pete Wilson said during an August 25 hearing in Sacramento, “it would be: Process has replaced leadership.” The rumblings of concern have reached a crescendo thanks to an odd coincidence of natural and political events. Gov. Arnold Schwarzenegger kicked things off with his $115.7 billion May revise of the state budget, in which he outlined a three-point plan to revitalize Cal-Fed, including an independent review of the program and development of a long-term financing plan. He followed that up with a June 22 letter to the state’s Little Hoover Commission, asking it to recommend improvements to the Cal-Fed governance structure. Former Gov. Wilson was one of several current and former officials with direct Cal-Fed involvement to testify at the first of three hearings convened by the Commission. Other speakers included Lester Snow, the former executive director of Cal-Fed who now heads the state Department of Water Resources, and Bruce Babbitt, who signed the original Cal-Fed agreement when he served as interior secretary under President Clinton. “At the outset, we clearly anticipated this process would yield major progress in two areas: finding and developing the sites and infrastructure for increasing surface storage, and making large investments in modernizing and updating the Delta infrastructure,” Babbitt told the commissioners. “The program has not met those expectations.” Snow, however, defended Cal-Fed against the mounting criticism. “Saying Cal-Fed is a failure — that’s pure hyperbole,” Snow told the Little Hoover Commission. “Cal-Fed was not designed to resolve all of the state’s water problem. It was designed to solve conflicts in the Bay-Delta system, and it is doing that.” “The last 10 years,” Snow added, “have been remarkably free to lawsuits related to management of the Bay-Delta system because most stakeholders have viewed collaboration as more constructive and proactive than litigation.” Snow’s more positive assessment has become rare in Sacramento. The Legislature, not wanting to be outdone by the administration, conducted its own hearings on conditions in the Delta. One was convened August 23 by Sen. Mike Machado (D-Linden) who chairs the Senate Natural Resources and Water subcommittee on the Delta. Another, on the same day as the Little Hoover Commission’s hearing, was conducted by Assemblyman Lois Wolk (D-Davis), chair of the Assembly Water, Parks and Wildlife Committee. Both hearings focused on evidence of continuing ecological problems in the Delta, despite the hundreds of millions of dollars invested by Cal-Fed. Recent surveys show continuing and severe population decline among key Delta fish species, including striped bass, threadfin shad, delta smelt and longfin smelt, along with a variety of zooplankton that serves as an important food source for the fish. A team of state and federal biologists is trying to figure out why. Although operation of the Delta pumps that move water south has long been regarded as having a deleterious effect on fish, researchers say there is no clear statistical link between pump operation and numbers of fish. To some, that disconnect suggests a more pervasive and troubling imbalance in the Delta ecosystem. “We have learned a tremendous amount about the Delta in the past five years and most of it is really bad news,” said Steve Hall, executive director of the Association of California Water Agencies. It took nature to deliver the worst news of all. When Hurricane Katrina slammed into the Gulf Coast in late August, breaching the levees protecting New Orleans and turning that coastal city into a modern-day Atlantis, it led to renewed warnings about the threat of a similar disaster in the Delta, where 1,100 miles of fragile earthen dikes protect a region that lies mostly below sea level. As California water and flood managers warned in a spate of post-Katrina op-ed pieces and news stories, collapse of multiple Delta levees after a major earthquake or winter storm likely would force shutdown of the huge pumps that feed the State Water Project and Central Valley Project. Such a collapse has a 2-in-3 chance of occurring in the next 45 years, experts warn. Little has been done to safeguard against such an event, although one of Cal-Fed’s chief goals is improvement of the Delta levee system. “I think that the dire and urgent nature of the threat is really now beginning to dawn in policy makers here in Sacramento,” Hall said. Several of those who testified before the Little Hoover Commission pinpointed where they believe Cal-Fed has gone astray. Most agreed that the peculiar structure of the program — “an odd creature that only a mother could love,” former California Resources Secretary Mary Nichols called it — contributes to confusion and inertia. Overseen by the California Bay Delta Authority (CBDA), which has no authority over the state and federal agencies responsible for water projects and environmental regulation, the program is funded piecemeal by periodic and unpredictable congressional appropriations, bond measures and state budget allocations. The biggest single weakness in the program is the failure of Cal-Fed administrators to recognize the financial limitations facing the state and federal governments and to decide which of the many Delta projects are of highest priority, said Bennet Raley, former assistant secretary for water and science in the U.S. Department of Interior. “To be blunt, I lost confidence in Cal-Fed when it essentially refused to develop budgets that recognized unavoidable fiscal realities,” Raley told the Little Hoover Commission. “You can shoot the messenger, but that will not change the harsh reality that CBDA must evolve away from an organization that acts as if infinite funding will magically appear into one that is able to prioritize and effectively spend whatever funding is provided.” The commission is expected to submit its report to the governor in November. Contacts: Steve Hall, Association of California Water Agencies, (916) 441-4545. Lester Snow, Department of Water Resources, (916) 653-7007. Little Hoover Commission: lhc.ca.gov

The California Supreme Court has accepted a case in which a deal between the State Lands Commission and the City of Long Beach was halted by an appellate court. At issue is a complicated land swap. Nearly 100 years ago, the city acquired tidelands from the state. By law, tidelands are covered by the “public trust doctrine” and can have limited, public uses. Over time, the city filled in the tidelands, which lie between downtown and the waterfront. The property in question is three acres of filled tidelands, on which the city sought retail development as part of a major redevelopment project. The city in 2001 approved a multi-screen cinema, an arcade and other retail uses on the site. Project opponents argued that the development, known as Pike at Rainbow Harbor, violated the public trust doctrine. The State Lands Commission suggested that it agreed with the project opponents. So the Commission removed the three acres from the public trust and, in exchange, placed 10 acres of city-owned land along the Los Angeles River in the public trust. Project opponents sued, and the Third District Court of Appeal ruled that the deal violated the state law that permits the exchange of land covered by the tidelands public trust doctrine (see , July 2005). The city and Developers Diversified Realty, which built Pike at Rainbow Harbor, appealed to the Supreme Court. The court has framed the question before it this way: “Does Public Resources Code § 6307 permit an exchange of land only when the exchange will serve any of the trust purposes designated in the statute with respect to the land that is currently subject to the public trust, or does the statute also permit an exchange when the exchange will serve any of the designated purposes with respect to the land that is to be acquired and that will become subject to the public trust as a result of the exchange?” The case is , No. S134300. Opening briefs are due this month.

Developer Jeff Dritley acknowledges he did not set out to run a municipal airport when he first started talking to the City of Hawthorne two years ago. Dritley, who is managing director of Kearny Real Estate Company, is a developer with industrial and office projects on his resume, not necessarily the bona fides for running a general aviation airport for profit. Yet Dritley had a very good reason for agreeing to assume management responsibilities for the airport late last year: Under the terms of the agreement with the city, Kearny also gets to develop the property. And in Los Angeles County, where large-scale industrial properties are increasingly hard to find, this is a powerful incentive. To our knowledge, the operate-and-develop deal for Hawthorne Airport is a unique public-private agreement. True, cities have invited developers to build at other municipal airports. In the case of the Hawthorne Airport, the airport operator and the airport developer are the same. While City Manager Richard Prentice concedes the city will not make any money on the deal for at least seven or eight years, the city is taking the long view that developing the yawningly empty airfield can bring some fresh industrial enterprises — and a larger tax base — to a city that has not fully recovered from the decline of aerospace during the early 1990s. Dritley is currently processing entitlements to build up to 190,000 square feet of new industrial space on the non-runway portions of the 80-acre airport, which is located near the coastal edge of southwest Los Angeles County, just south of Los Angeles International Airport (LAX). In late July, the developer, in partnership with Morgan Stanley Real Estate Fund V, deepened his stake in the area by purchasing a 92-acre property immediately next to the airport currently occupied by Vought, a maker of fuselage parts for Boeing. (Kearny and Morgan Stanley acquired the property in a popular type of deal known as “sale-leaseback,” which offers Vought some potential tax advantages.) The Vought purchase gives Kearny effective control of 172 contiguous acres in Hawthorne. In the future, Vought, which occupies buildings originally built for Northrup, could eventually consolidate its operations in half the site, allowing Kearny the possibility, as yet unplanned, that portions of the Vought site could be developed together with the airport. Currently, the airport is earning “nearly nothing,” according to Dritley, and is threatening to nose-dive into red rink. Hawthorne’s city charter prevents the city from putting general fund money into the airport. That limitation, plus the facility’s continually weak and weakening performance, motivated the city to approach the developer in the first place. In exchange for shielding the city from financial loss, the developer got a deal with a great deal of upside. Under the terms of the agreement, Kearny will reimburse itself first from airport revenues for the cost of infrastructure construction, plus take another 10% of revenues on top of that. At that point, Kearny will pay a monthly rent to the city, based on the average rent of the previous 36 months, which is about $40,000. Any airport revenues beyond that level will be distributed between the developer and the city at a ratio of 75% to 25%. The unusual deal reflects the unusual nature of the site. Hawthorne Airport is a fragment of an immense aerospace plant formerly operated by Northrup, where fighter jets of the Second World War were manufactured. When Northrup abandoned the site in the 1970s, the aviation giant contributed the runway and some neighboring buildings as a municipal airport. While undoubtedly well-intended, the subsequent Hawthorne Airport has never been a huge success in civil aviation, probably because LAX is just a few miles north and attracts most general aviation traffic in the region. Dritley and Hawthorne city officials met during the course of an earlier project, when the developer’s company, along with Catellus Development and Morgan Stanley built a new office complex for the in the city for the Los Angeles Air Force Base (see , September 2003). While some locals may not be aware that an air base is in the city — the facility is essentially an office building in charge of procurement for the Air Force — Kearny’s successful completion of that project made the developer a logical choice for the city to approach for a proposal about developing the airport. In a lighthearted moment, Dritley is willing to agree that taking over the Hawthorne Airport is something like assuming control of a floundering hotel and a closed military base at the same time. Even Dritley likes to describe the Hawthorne Airport as “my McClellan,” referring to the Sacramento County base that closed in 2001 and is currently undergoing a makeover as a business park (see , June 2000). On the airport operations side, there is much to do. As it exists, the Hawthorne Airport has a pleasantly deliciously noir atmosphere of by-gone prosperity gone a little shabby. There is a coffee shop where the blue-fluorescent lighting and waitresses adorned with a smidge too much eye makeup help preserve the illusion that it’s forever 1963. Even if he did not set out to become, effectively, the general manager of a commercially challenged general aviation airport, Dritley says he is surprised by how much he is enjoying the role. Wearing his airport management hat, Dritley says that the adjacency of LAX could work to Hawthorne’s advantage, by offering “a better hotel” to the growing number of general aviation pilots, including the fast-growing charter jet industry. Hawthorne can compete with the immense airport by offering a “better level of service” than LAX, Dritley contends. Travelers, for their part, would remain conveniently close to LAX-area hotels and meeting rooms. Perhaps Dritley would relish the role less if advantageous real estate development were not in the offing. Little matter. By foregoing the profit motive, the city has been able to parlay a potential liability—a failing airport—into a magnet for bringing new business to the city, without losing control of a major public asset. If Kearny can perform, the city is the big winner in the long run, even if it never pulls another nickel out of the Hawthorne Airport.

The following bills are the major land use measures that state lawmakers introduced during 2005. Bills that did not pass this year may be revived when the Legislature reconvenes in January. AB 237 (Arambula). Authorizes the Department of Housing and Community Development (HCD) to forgive farmworker housing loans under certain circumstances. Never received a hearing. AB 350 (Matthews). Authorizes local governments in Alameda, Contra Costa, Santa Clara, San Joaquin and Stanislaus counties to create infrastructure finance districts in jobs-housing opportunity zones. Stalled in Senate committee. AB 549 (Salinas). Creates a pilot program in which a local government may self-certify its housing element based on production criteria. Never received a hearing. AB 712 (Canciamilla). Strengthens the “no let loss” law that limits density reductions. The bill tightens the standards for findings necessary for density reductions and extends similar limitations to residentially zoned sites not identified in a housing element as required for meeting a jurisdiction’s fair-share housing mandate. Passed . AB 906 (Houston). Provides tax credits for brownfield and mixed-use developments, and projects near transit stations. Held in Assembly committee. AB 1192 (Villines). Exempts nonprofit housing construction from prevailing wage requirements. Failed in Assembly committee. AB 1203 (Mullin). Authorizes local governments to create “greyfield housing and investment zones,” in areas where job growth and high-density housing is desired. Never received a hearing. AB 1233 (Jones). Requires a city’s or county’s unmet housing need to be carried forward to the subsequent round of housing element updates, and requires local governments to zone for housing to satisfy the previously unmet need. Passed . AB 1259 (Daucher). Allocates additional tax revenue to cities and counties that produce housing equal to at least 80% of the jurisdiction’s regional housing need allocation over 5 years. Stalled in Assembly committee. AB 1367 (Evans). Requires the state to respect local growth control initiatives when calculating fair-share housing requirements. Stalled in Assembly committee. AB 1387 (Jones). Carves a loophole in CEQA for urban infill projects that comply with the transportation policies in a general plan or zoning ordinance. Stalled in Assembly committee. SB 223 (Torlakson). Establishes a new program in which the Department of Housing and Community Development would offer forgivable loans to cities and counties for the preparation of specific plans that provide for additional infill housing. Stalled in Assembly committee. SB 253 (Torlakson). Among other things, clarifies what fees may be charged to cover the cost of the regional housing needs allocation process. Passed . SB 326 (Dunn). Amends a two-year-old law permitting by-right development of multi-family housing projects to also include duplexes, triplexes and four-plexes. Passed . SB 435 (Hollingsworth). Originally an amorphous bill concerning density bonuses and local government incentives for developers, the bill was watered down to clarify recently approved laws regarding density bonuses for projects that have an affordable or senior citizen component. Passed . SB 575 (Torlakson). Strengthens anti-NIMBY law relating to affordable housing projects and prevents cities and counties from rejecting or conditionally approving a project unless the jurisdiction has met its fair-share housing needs for the planning period. Passed . SB 832 (Perata/Torlakson/Lowenthal). Expands the CEQA exemption for urban infill housing projects in cities of at least 200,000 people. Stalled in Assembly. SB 948 (Murray). Requires a local government to prepare a “short form environmental impact report” for certain residential developments that are consistent with local land use requirements. Never received a hearing. SB 950 (Torlakson). Increases the types of housing that are considered “at risk” for the purpose of awarding tax credits. Passed . SB 1087 (Florez). Requires water providers to reserve capacity for affordable housing projects, and reinforces existing law prohibiting water suppliers from denying service to affordable housing developments. Passed . SB 44 (Kehoe). Requires all jurisdictions to adopt air quality elements that account for development patterns. Failed in Assembly. SB 409 (Kehoe). Requires cities and counties to correlate the water supply portion of their general plan conservation elements with their land use elements. Failed in Assembly committee. SB 655 (Ortiz). Requires cities and counties to map areas with naturally occurring asbestos, identify the areas in the general plan, and disclose to buyers if asbestos is present. The bill stems from controversy in El Dorado and other Sierra foothill counties, where development has stirred up natural asbestos fibers. The building industry opposed the bill. Failed in Assembly. SB 968 (Torlakson). Originally a bill addressing local requirements for residential zoning, the bill was amended to change the name of the circulation element to the transportation element. Stalled in Assembly. SB 1059 (Escutia). Requires cities and counties to amend their general plans to show the electric transmission corridor designated by the California Energy Commission. Stalled in Assembly. AB 365 (Salinas). Permits construction of greenhouses on lands protected by the Williamson Act. Passed . AB 797 (Wolk). Beefs up the role of the Delta Protection Commission and prohibits the expansion of urban services into the Delta’s “primary zone.” The bill appeared to get bogged down because of a controversy over a proposed Sacramento riverfront development in Clarksburg. Held in Senate committee. AB 1747 (Wolk). Permits the Rumsey Band of Wintun Indians to become a member of a joint powers authority that would purchase the 17,000-acre Conaway Ranch, possibly by eminent domain. Passed . AB 517 (Hancock). Extends the life of the Berkeley Redevelopment Agency exclusively for the purpose of carrying out affordable housing projects. Never received a hearing. AB 590, AB 1162, ACA 15, ACA 22, SB 53, SB 1099, SCA 12, SCA 15 . All bills dealing with eminent domain authority in light of the U.S. Supreme Court’s ruling upholding the use of eminent domain for economic development. None of the bills made it out of committee. At least some of the bills, and possibly more, are likely to return in 2006. In the meantime, lawmakers have scheduled hearings for October 26 in San Diego and November 17 in Sacramento. AB 691 (Hancock). Allows local governments to designate existing specific plans or redevelopment plans as “transit village plans.” Passed . AB 921 (Daucher). Authorizes redevelopment agencies to extend the life of project areas by 25 years without a finding of blight. Never received a hearing. AB 939 (Mullin). Expands the area where pooled redevelopment housing set-aside funds may be expended to include sites near BART stations and along El Camino Real on the Peninsula. Stalled in Assembly committee. AB 1352 (Baugh). Permits redevelopment agencies to transfer housing funds to other agencies within the same council of governments region. Stalled in Assembly committee. AB 1390 (Jones). Expands enforcement of a redevelopment agency’s low- and moderate-income housing requirements, and amends certain replacement and rehabilitation housing requirements. Specifically, the legislation establishes a 10-year statute of limitations for suing redevelopment agencies for violating housing mandates. Passed . AB 1491 (Calderon). Gives the City of Industry control over half of its redevelopment housing set-aside funds. Los Angeles County now has control over the money. Never received a hearing. SB 521 (Torlakson). Permits redevelopment agencies to use tax increment financing to develop high-density projects near transit stations. Stalled in Assembly committee. SB 588 (Runner). Originally a bill permitting redevelopment agencies to spend “surplus” housing funds for purposes other than housing, SB 588 was amended to address an unrelated matter. AB 1335 (Vargas). Expands the potential scope of property and business improvement districts. Also changes the procedures for forming districts. Stalled in Senate committee. AB 1746 (Assembly Local Government Committee). Extends the deadline for Local Agency Formation Commissions to update their spheres of influence to January 1, 2008, and makes other changes to the Cortese-Knox-Hertzberg Act. Passed . SB 1026 (Kuehl). A bill that addressed a number of subjects during the year, SB 1026 on the final day of the session became a measure authorizing the use of the design-build method for constructing a carpool lane on the San Diego Freeway. Stalled in Senate. SB 1060 (Campbell). Authorizes cities and county to exchange property tax and sales tax revenues voluntarily. Held in Assembly committee.

A memorandum of understanding (MOU) between the City of Rohnert Park and an Indian tribe planning to build a casino is not a “project” requiring environmental review, the First District Court of Appeal has ruled. The decision was the second appellate court setback for opponents of the resort casino proposed by the Federated Indians of Graton Rancheria for unincorporated land just west of Rohnert Park. In June, the First District ruled that the MOU was not subject to voter referendum ( , 2005 DJDAR 8057; see , August 2005). The City Council approved the controversial MOU in October 2003. It calls for the tribe to provide $200 million to the city, schools and nonprofit organizations over 20 years in exchange for the city’s support of the casino project, which is yet to clear federal and state hurdles. In their litigation, casino opponents argued that the MOU was similar to a municipal services agreement or a development agreement in that the MOU committed the city to a course of action that included the construction of infrastructure and the provision of public services to the proposed casino. Because it committed the city to certain actions, the MOU was a “project” under the California Environmental Quality Act (CEQA), the opponents contended. Sonoma County Superior Court Judge Robert Boyd rejected the argument and ruled for the city and the tribe’s development entity, SC Sonoma Development. A unanimous three-judge panel of the First District upheld the lower court. Citing Government Code § 65865.2, which specifies the terms of a development agreement, the court distinguished the MOU from a development agreement. “Our examination of the MOU in this case reveals that it contains none of the necessary provisions of a development agreement,” Presiding Justice James Marchiano wrote for the court. “It does not specify the permitted uses, density or intensity of use, maximum height of buildings or contain provisions for the dedication of land for public purposes. The only topics addressed in the MOU are the ways in which the tribe agrees to mitigate potential impacts of its casino project. In addition, the city is unable to enter into a development agreement for the casino project because it has no authority over the specified county-owned land outside the city’s boundaries, Indian land in general, or Indian gaming.” The MOU “sets no time for development and does not obligate the city to undertake a specified construction project,” Marchiano wrote. Instead, the court characterized the MOU as a “funding mechanism” that is not subject to CEQA. The agreement acknowledges that any future infrastructure project related to the casino will require CEQA review, Marchiano noted. Casino opponents also argued that the doctrine of pre-emption applied because federal and state law regulate Indian casino development. But the First District rejected this notion, finding no conflict between the MOU and federal or state law. “The MOU does not attempt to regulate any of the matters subject to federal jurisdiction or that may be included in a tribal-state compact, but merely provides for a funding source if the city constructs improvements in the future,” the court ruled. The Case: , No. A106592, 05 C.D.O.S. 7514, 2005 DJDAR 10159. Filed July 25, 2005. Ordered published August 19, 2005. The Lawyers: For Citizens: James E. Marino, (805) 967-5141. For the city: Michelle Marchetta, McDonough, Holland & Allen, (510) 273-8780. For SC Sonoma Development: Judy Davidoff, Steefel, Levitt & Weiss, (415) 788-0900.

A state appellate court has thrown out a “general plan” for a beach park in Santa Cruz because the initial study of environmental impacts did not address the effects of unleashed dogs at the park. However, the court also ruled that there was not enough evidence to force preparation of an environmental impact report for the park plan. Instead of demanding an EIR, the court ruled, “Once the informational requirements of a complete initial study have been met, the city as lead agency may again determine whether a negative declaration, a mitigated negative declaration or an EIR is appropriate.” The decision came in a case regarding the City of Santa Cruz’s planning for Lighthouse Field State Beach, which the city operates under agreement with the state. The park contains a field area and small beach known as “Its Beach.” The primary controversy at Lighthouse Field and Its Beach concerns dogs. The 1984 Lighthouse Field State Beach general plan required that pets be restricted to leashes. However, the city in 1993 began permitting off-leash dog use at the field and beach during certain times of day. When the city began updating the general plan in 2001, the city received numerous comments regarding the deleterious effects of unleashed dogs on wildlife, native plants, water quality, public health and visitors’ enjoyment of the park. In early 2003, the state Department of Parks and Recreation recommended that the city eliminate all references to unleashed dogs in the general plan update and that the city address the issue separately in the future. In April 2003, the City Council adopted the general plan update and negative declaration. The new plan prohibited all dogs in environmentally sensitive areas but did not address the issue of unleashed dogs. A group called Lighthouse Field Beach Rescue sued, arguing that the initial study was inadequate, that the city’s approval of the plan and negative declaration violated the California Environmental Quality Act, and that deferring the issue of unleashed dogs was an improper piecemealing of the project. Santa Cruz County Superior Court Judge Robert Atack ruled for the county. A unanimous three-judge panel of the Sixth District Court of Appeal then reversed the lower court. Lighthouse Field Beach Rescue argued that the initial study — one of the first steps in the CEQA process — was inadequate because it did not fully describe the baseline conditions, specifically the conditions created by off-leash dogs. The group also contended the initial study failed to analyze the impact of unleashed dogs. The Sixth District ruled that the initial study’s treatment of the baseline was acceptable. But the court ruled that the study should have better addressed the issue of unleashed dogs. Santa Cruz and the state argued that the updated plan did not alter the park’s leash policy, and that new restrictions on where dogs may go would result in a net decrease in environmental impacts. The court was not convinced. “The revised dog guidelines unquestionably alter the management direction for the state beach regarding off-leash dog use, which was previously set by the original plan,” Justice Franklin Elia wrote for the court. “The fact that the city disregarded or failed to enforce the original leash guideline in the past does not change the scope of CEQA review in the present since the city is supposed to take its ongoing management direction from the general plan. … In habitat areas not identified as environmentally sensitive and accessible to dogs under the revised plan, the new open-ended dog guidelines provide no parameters regarding unleashed dog use and seemingly allow for unchecked increases in unleashed dog use.” The court also concluded that the initial study should have reflected the city’s consideration of policy changes regarding leashes, and the court rejected the city’s argument regarding “net” environmental improvements. The court then considered whether plan opponents could make a fair argument that adoption of the new park plan may have a significant effect on the environment — the standard for determining whether an EIR is required. The beach rescue group cited environmental issues such as noise, dog waste, interference with birds and nursery sites, and water quality. But the court found that the impacts already exist, and that the new plan would diminish them. “Visitors with both leashed and unleashed dogs have already been using the state beach extensively,” Elia wrote. “In addition, appellant’s analysis overlooks the fact that the original plan permitted dogs in all parts of LF State Beach. The original plan’s guidelines did not specify that visitors pick up after their dogs’ waste or otherwise control their dogs’ behavior beyond having them on leash. The revised general plan is more protective than the original plan insofar as it restricts dogs from certain environmentally sensitive areas and seeks to educate the public regarding protecting these areas from human and dog disturbance.” “ he record suggests that the revisions affecting dog use will be more protective of vulnerable habitat areas than the original plan,” Elia wrote. The court ordered the city to set aside its adoption of the negative declaration and the new park plan. The Case: , No. H027491, 05 C.D.O.S. 7063, 2005 DJDAR 9711. Filed August 10, 2005. The Lawyers: For Lighthouse Field Beach Rescue: Susan Brandt-Hawley, (707) 938-3908. For the city: John Barisone, Atchison, Barisone, Condotti & Kovacevich, (831) 423-8383. For California Department of Parks and Recreation: John Davidson, attorney general’s office, (415) 703-5500.

For four decades , North Natomas — a low-lying area just north of Interstate 80 — has represented what could be in Sacramento. Today, North Natomas is the state capital’s primary growth area. Whether North Natomas is cutting edge or a lost opportunity, however, depends on one’s viewpoint. Although houses are new in North Natomas, the area has a long planning history. During the early 1960s, public officials and developers envisioned a giant regional shopping mall surrounded by miles of single-family houses. But North Natomas remained a growth area only for rice and sheep. In the mid-1980s, the vision was of a sports complex featuring a basketball arena and multi-use stadium, vast tracts of industrial office parks and, of course, new housing. The arena got built (two arenas, actually) but the stadium project was abandoned and other development remained sparse, partly because the city insisted on seeing the stadium built first, and partly because the real estate market crashed (see , June 1991). Despite the early-1990s market nosedive, growth pressure was increasing. North Natomas lies between the airport to the north and downtown Sacramento, only four miles to the south. Interstates 5 and 80 and Highway 99 provide access. Additionally, because of a hardpan layer, the soil is good for water-intensive rice farming but not much other agriculture. The slow market provided a window in which to plan. In 1992, a working group of about 30 people — developers, landowners, environmentalists, Natomas residents and city staff members — began work on a new plan. Using a collaborative approach that gave any interest group veto power, the working group met for a year before it settled on a set of principals for growth on about 9,000 acres in North Natomas (see , December 1992). In 1994, a unanimous City Council adopted the a community plan based on those principals. Although former Maryland Gov. Parris Glendening had not yet invented the term “smart growth,” the 1994 North Natomas Community Plan surely would have qualified for the description. Land use was organized around 14 neighborhoods connected not only by roads but by pedestrian and cycling routes. Eighty percent of housing units were to be within 880 feet of a park, open space or school yard. A light rail line from downtown was to run through the heart of North Natomas, making six stops before heading to the airport. High-density, mixed-use projects with a great number of jobs were to be located next to the transit stops. An urban growth boundary bordered the north and west sides to prevent sprawl. Complementing the community plan was infrastructure financing plan (see , September 1994) and, three years later, a habitat conservation plan. The city issued the first building permit based on the North Natomas community plan in February 1997, and today about 30,000 people call half-built-out North Natomas home. But whether North Natomas has fulfilled its “smart growth” potential is unclear. Light rail appears to be at least a decade away, possibly much longer. The predominance of wide, high-speed boulevards discourages walking. Development of job centers lags behind residential and retail growth. The urban growth boundary appears unlikely to hold. At the same time, North Natomas does offer a wide variety of housing types and price ranges, and at an average density of 10 units per acre, well above the regional average. A new high school and community college campus are in place, with a library coming soon. Parks are opening at the pace of one a month. “I see compromise. I see some success and some failure,” said Brent Thrams, an architect and UC Davis instructor who helped represent the Environmental Council of Sacramento (ECOS) on the North Natomas working group. “I see progress in the planning sense.” “I think most of the big-picture planning ideas have been implemented,” said Mike Winn, another working group member and now a vice president for Reynen & Bardis, which has developed about 8,000 housing units in North Natomas. “I would say on the whole, the plan has held up pretty well.” But longtime Sierra Club activist Vicki Lee, also a former working group member, is not so positive. “The backbone idea was light rail going through there, and transit-oriented development,” Lee said. “But that was just a dream. The whole thing is auto-dependent and there is very little transit.” A New Process While opinions vary about present-day North Natomas, seemingly everyone has positive memories of the process for the community plan. Prior to that process, Sacramento’s growth battles were just that — battles. For the working group, consensus was essential. “It helped break the old-school approach to land use planning where people pitted their positions in extremes and waited for an elected official to decide,” Winn recalled. Thrams said the nearly two-year process started off predictably, with environmentalists and developers at odds and city officials serving as facilitators. As time passed, though, the sides began to blur, he said. Working group members found they could agree on the vast majority of principals, such as preserving the environment, and providing social and economic equity. “As time passed, the level of trust between the environmental community and the development community became much greater,” Thrams said. Tom Whitney, an ECOS representative who has since moved out of state, recalled the process being exhausting, educational and worthwhile. “The planning was very intricate and unprecedented in detail,” Whitney wrote in a recent memoir. “It involved a fundamental thinking-through by all parties involved of every aspect of infrastructure and exploring the multiple ramifications of each for air quality, community livability, non-car orientation to facilitate transit, walking and bicycling, safety, open space, drainage, minimizing noise, parks, access to neighborhood centers, housing mix, the jobs-housing balance and habitat protection, among other issues.” Sticking With The Plan “A plan is not a plan unless you get it in the ground and build it,” Carol Shearly says. Now the manager of the Sacramento Planning and Building Department’s New Growth Division, Shearly wrote the North Natomas community plan based on the working group’s principals, and she has been defending the plan ever since. “It hasn’t been without its challenges,” she acknowledged. “I was naïve about this when I started my involvement,” added ECOS’s Whitney. “I thought that once we got the elected bodies to adopt the Natomas plan and the county general plan, we could relax. Not so.” Before the city even started issuing building permits, the City Council amended the community plan, changing an area that had been designated for a mix of offices and residences to permit development of Natomas Marketplace, a big-box power center. For environmentalists, Natomas Marketplace represents what North Natomas was not supposed to be: an automobile-dominated, retail-only giant next to the freeway. Winn, who was not involved in Natomas Marketplace development, conceded that the project has bad internal circulation and causes traffic congestion. But, he quickly noted, many people shop there. Power centers were relatively unknown during the early 1990s, so the North Natomas plan did not account for them. By the time plan implementation came around, power centers were becoming a retail trend — and the sales tax that Natomas Marketplace would generate was too much for the city to turn down. The site of Natomas Marketplace was supposed to be a mixed-use “employment center.” So was land across the street. But interest in building job centers has been light. Four years ago, the city did reject a 1.2-million-square-foot power center adjacent to Natomas Marketplace. However, the city eventually approved a project called Promenade at Natomas — 600,000 square feet of retail, plus an office building and two hotels. Detractors believe that approving the Marketplace and Promenade projects next to a planned light rail stop was a mistake because light rail serves residents and office workers, not people shopping at Wal-Mart. But, as it turns out, there is no guarantee a light rail train will ever stop in front of the shopping centers. Initially, light rail was scheduled to be running by 2010. Now, the date is 2012, but even Shearly, a light rail defender, doubts that schedule. Work on an environmental impact report has only begun, and not all of the right-of-way for the preferred alignment between North Natomas and downtown has been acquired. In the meantime, advocates see opportunities slipping away. Lee said environmentalists had envisioned very high-density apartments next to transit stops, but there is no political will for such projects. “ What’s going on out there is largely a wasted opportunity to build smart,” said ECOS President Andy Sawyer. “There has been a very noticeable failure in implementing the plan in a way that is smart for transit.” “Transit-oriented development is a chicken and egg,” Shearly responded. “You’ve got to have the density to get transit, but you need the transit to get density.” Marni Leger, former head of the Natomas Community Association’s planning committee who now publishes a magazine about Natomas, said the city and Regional Transit have not provided the transit that was promised to North Natomas, either in the form of adequate bus service or light rail. Instead, light rail has been extended elsewhere. “What’s lacking is the whole transportation element,” Leger said. “A lot of apartment dwellers don’t have the option that was envisioned.” Simply getting the density necessary to support transit has been difficult in a region long committed to suburban-style, single-family houses. Randy Pestor, another former member of the Natomas Community Association’s planning committee, lamented developers’ reluctance to build something other than suburban projects. “It’s been a real effort to get developers to build at a higher density,” Pestor said. “They come in with proposals at densities well below the community plan, and we have had to consistently push for higher densities.” For environmentalists and certain planning advocates, high densities and transit are efficient uses of land and infrastructure. But to suburban homebuyers, density and transit are unwanted aspects of big-city lifestyles. Some of these homebuyers have fought plans to bring light rail down Truxel Road, a primary north-south route, arguing that public transit belongs next to I-5 instead. “Everything that was seen as an amenity by the planning team is seen as a negative by the residents,” lamented Winn, citing the light rail line and undeveloped open space that has proven difficult to maintain. “I’m a little bit shell-shocked with some of the negative comments that I hear.” The light rail alignment fight eased when planners guaranteed that no homes would be taken for the project. Still, the underlying tension remains. Shearly said there is more transit than some people realize. A transportation management agency funded by parcel taxes pays for shuttles to downtown and within North Natomas, carpools and bicycle facilities. Providing public services, be they transit or libraries, as new residents fill up growth areas is always a challenge. In North Natomas the challenge has been magnified by the pace of development. The city expected to see about 1,500 new housing units a year in North Natomas. Instead, the hot market has resulted in as many as 2,800 new housing units in one year, Shearly said. “We sort of released a pressure cooker,” she said. “You just don’t do that easily.” What About The Critters? Perhaps the most problematic aspect of North Natomas growth has been the habitat conservation plan (HCP). The greater Natomas Basin stretches over 53,000 acres in Sacramento and Sutter counties. In 1997, Sacramento and federal and state agencies adopted the Natomas Basin HCP to mitigate development’s impact on about two dozen species, including the protected Swainson’s hawk and giant garter snake. Environmental groups, including ECOS, sued and a federal district court judge in 2000 threw out the HCP because not all of the parties required to implement the HCP — such as Sutter and Sacramento counties — had agreed to participate (see , June 2001). The ruling temporarily halted North Natomas development. In 2003, all of the necessary government entities adopted an HCP that was essentially the same as the original plan. Environmentalists continued their litigation, but both state and federal courts have upheld the habitat plan this year. The document calls for the Natomas Basin Conservancy to acquire 8,750 acres, equal to one-half acre for every acre planned for development. Although the plan permits acquisition over 50 years, the Conservancy already owns 4,105 acres, said Executive Director John Roberts. Development impact fees are the sole source of Conservancy funding. But what sets the Conservancy apart is its requirement that a developer dedicate fee title to habitat land before development may occur. The Conservancy does not accept easements, Roberts said, because the agency must do too much to build and monitor habitat to rely on anything less than full ownership. The litigation has moved to the appeals stage. Sawyer, of ECOS, said the HCP falsely assumes that growth will not spread beyond the current city limits. Yet the city, the county and landowners have been talking about growth beyond the current boundaries for three years. Going Above And Beyond Shearly conceded “there is considerable pressure” to build outside the current urban services boundary. The city and county have been involved in a “joint vision” process for areas closer to the airport and the Sutter County line, and the city is studying a potential 9,000-acre annexation. So much, say environmentalists, for North Natomas’s urban edge. Yet development may not wait even for the city’s comprehensive annexation. The city is processing a 580-acre project outside the current city limits and next to a long-planned airport industrial center. City officials say the Greenbriar project — proposed by Sacramento’s most prominent developer, Angelo Tsakopoulos, in partnership with Woodside Homes — would be beneficial because it would provide houses near the planned airport light rail line. The city’s willingness to move on Greenbriar has also spurred an application for annexation by the Ose family, which owns 1,300 acres outside the growth boundary. Environmentalists are outraged at what they call “leapfrog development” and the betrayal of both the community plan and the HCP. And only three miles beyond the current growth boundary lies Sutter County, where voters last year approved an advisory measure designating 7,500 acres abutting Sacramento County for extensive urban growth. If the Sacramento urban region is going to reach halfway to Yuba City, then what was the point of the North Natomas planning effort? Shearly said North Natomas has increased density’s acceptance by developers and the market. “I think in some ways we’ve challenged the region. You see fewer ‘snout houses.’ We’ve seen huge strides in median-density housing,” she said. “We’re seeing a lot of what I would characterize as horizontal mixed-use.” Over the next several years, she expects the 200-acre town center, which is still developing, to become an important focal point. Others are skeptical. Many working group members see North Natomas’s gated subdivisions, big-box power centers and squishy urban boundaries as antithetical to the original principals adopted by consensus. “I think that plan was fabulous when we did it,” the Sierra Club’s Lee said. “It’s just unfortunate that it didn’t get built out like we wanted. When I’m out there, I always feel like I’m in Orange County.” Contacts: Carol Shearly, Sacramento Planning and Building Department, (916) 808-8368. Mike Winn, Reynen & Bardis, (916) 366-3665. Brent Thrams, Acanthus Studio, (916) 444-9020. Andy Sawyer, Environmental Council of Sacramento, (916) 492-5657. Marni Leger, N Magazine, (916) 359-7411. John Roberts, Natomas Basin Conservancy, (916) 649-3331. Levees Keep Low-Lying Growth Area Dry No one would ever confuse Natomas Town Center with Bourbon Street. Yet North Natomas and New Orleans share a common trait: Both rely entirely on levees for flood protection. In New Orleans, the threat of flooding was realized in late August when Hurricane Katrina slammed into the Gulf Coast, killing more than 1,000 people and causing a levee failure that inundated the crescent city and neighboring parishes. The reliance on levees for protection from high water is standard in Sacramento, which lies at the confluence of the Sacramento and American rivers. Although dams control the flows in both rivers, the waterways pose major flood threats. Improving levee stability has been a priority for the Sacramento Area Flood Control Agency and the U.S. Army Corps of Engineers for years. North Natomas is essentially a bowl between the two rivers. A levee breach could flood the entire area, much of it by 10 to 20 feet. For years, environmentalists and slow growth activists fought North Natomas development based on the flood threat. But by the early 90s, they could see that growth was inevitable and they dropped the cry over flooding. “Without question, building in a place like this is the wrong thing to do,” said Brent Thrams, an architect and hydrologist who represented the Environmental Council of Sacramento on the North Natomas working group. The community plan relies heavily on parks, playgrounds and open spaces — most of which are in low spots — to slow the rush of high water. Thrams likes that approach, but his doubts remain. “In the long run, it’s going to fail, and it’s going to flood,” Thrams said. “I said that up front. I still believe that today.” Over the years, public agencies have spent tens of millions of dollars to raise and strengthen the levees that keep North Natomas dry. The Federal Emergency Management Agency rates the levees adequate for 100-year flood protection, and property owners are not required to carry flood insurance. Sacramento planners consider North Natomas better protected than most parts of the city. Flood experts, though, worry about a false sense of security. North Natomas residents who live several miles from any river would likely be surprised to know that their safety rests on levees holding back swollen rivers. In a speech to the Central Valley Flood Control Association last year, Army Corps of Engineers Col. Michael Conrad issued a blunt assessment: “Once you start developing in the flood plain, it is hard to stop. Once you have 10,000 people at risk, you can’t walk away. But does packing in another 50,000 somehow make it better? And even in deep flood plains behind 15- and 20-foot-tall levees, often times the requirement for flood insurance goes away because a flood protection project has reduced the odds of flooding. But those areas will likely flood someday, and, tragically, people will lose their lives.”

Two long-running growth disputes will add another chapter — and many disputes of more recent vintage will be aired out — when voters decide on local ballot measures in November. Voters in Livermore are scheduled to consider Pardee Homes’ proposal to expand the city’s urban growth boundary to permit development of a 2,450-unit housing project. Meanwhile, voters in Monterey County will decide a referendum of a 4,000-unit specific plan for Rancho San Juan, just north of Salinas. Many other measures are on the ballot statewide. Most are located in longstanding “ballot-box zoning” hotspots, such as the East Bay, the South Bay and Redlands, rather than in areas new to land use ballot measures. Other closely watched elections are set for: • Davis, where voters will consider the 1,800-unit Covell Village project; • Three eastern Contra Costa County cities, where developers are trying to open up more land for growth; • Calabasas, where rezoning for a resort and an open space protection ordinance are on the ballot in separate measures; • Redlands, where a small residential project faces a referendum and voters also will have the chance to tighten existing growth controls; • Cupertino, where slow-growth advocates have placed three general plan amendments on the ballot. In all, voters will decide on about two dozen growth-related measures during the November 8 special election. Five years ago, Alameda County voters approved urban growth boundaries around cities and unincorporated communities in the middle and eastern part of the county. One of the main targets of that Sierra Club-backed initiative was North Livermore — several thousand acres north of Interstate 580, where the county was considering a 12,500-unit specific plan. The 2000 initiative required subsequent voter approval before development could proceed in North Livermore. (See , September 2003, December 2000, October 2000, June 2000). Two years later, the Livermore City Council adopted its own urban growth boundary. Pardee is the first developer to take a shot at expanding Livermore’s growth boundary. The Livermore Trails plan calls for 2,450 housing units, a neighborhood retail center, a 130-acre sports park, a 750-acre open space preserve, and land for a high school, an elementary school and civic buildings. Pardee proposes a variety of housing units — single-family houses, townhouses and apartments — on 450 acres, with 15% of units designated for moderate- and low-income families. Previous proposals for North Livermore were large, master-planned communities, which were not what Livermore residents want, said Carlene Matchniff, vice president of community development for Pardee. “We felt that if we scaled back the plan with fewer units and highly amenitized them, it would be acceptable to the community,” Matchniff said. “If this project is not approved, it’s hard to believe any project could be approved.” But Bob Baltzer, of Friends of Livermore, said the urban growth boundary is intended to preserve the farmland and open fields north of the freeway. “The whole reason we put that there is to prevent this type of growth. It’s not infill, it’s greenfield development,” Baltzer said. He pointed to the city general plan, which calls for extensive infill growth, including thousands of housing units in downtown. As usual, traffic is a primary source of contention. Baltzer said Livermore Trails would generate an “unbearable amount of additional traffic on city streets, as well as the freeway, which is already pretty close to gridlocked.” However, Matchniff contended that Livermore’s traffic congestion is caused by long-distance commuters who live in the San Joaquin Valley and work in the Bay Area. Livermore Trails would place housing closer to jobs, thus shortening commutes, she said. Even if voters approve of moving the urban boundary, Livermore Trails would still have to complete the planning process. Besides voting on the Pardee project, Livermore voters also will decide whether to join a regional project that expands wastewater treatment capacity. The additional capacity — in the form of an export pipeline — could not be used to serve development outside the current growth boundary unless voters approve in the future. Livermore Trails is proposed to have its own wastewater treatment plant. In Monterey County, voters are scheduled to decide whether to uphold the Board of Supervisors’ approval of the Rancho San Juan specific plan. However, the possibility exists that at least a portion of the plan may be obsolete before balloting is complete. In December, the Board of Supervisors approved the specific plan for Rancho San Juan’s 2,500 acres and the first phase of development — the 1,100-home Butterfly Villages project. Opponents then collected enough signatures on a referendum of the project’s general plan amendments. Since then, though, Butterfly Village developer HYH Corporation and county officials have discussed a scaled back first phase. In August, supervisors considered rescinding the earlier vote and canceling the election. However, development opponents urged supervisors to let the vote proceed, and a 3-2 Board of Supervisors agreed to go forward with the election. “Why put the county through the meat grinder of an election?” asked Brian Finegan, an attorney for one Rancho San Juan property owner but not HYH. “Everybody has abandoned the project that is the subject of the referendum.” But Julie Engell, chair of the Rancho San Juan Opposition Coalition, which headed the referendum and argued for the election, said the public is wary of the county’s “shenanigans.” “I believe they are trying to piecemeal it and allow everything to happen there – and more,” Engell said. “People are feeling bullied, and they don’t like it.” Development of Rancho San Juan has been a controversial topic in Monterey County for more than two decades (see , June 2003). Engell’s group and other growth activists argue that development would further drain already strained groundwater aquifers (see , June 2004) and worsen congestion on Highway 101 between Salinas and San Jose. Both Caltrans and the City of Salinas have sued the county over impacts from the Rancho San Juan project. Other local land use elections on the November ballot: • Contra Costa County : In the cities of Antioch, Brentwood and Pittsburg, voters will decide on urban growth boundary initiatives placed on the ballot by development interests. The measures attempt to head off county efforts to constrain growth within tighter boundaries. • Contra Costa County : A $21 million bond to build a new library in the City of Walnut Creek is on the ballot. • El Dorado County : Incorporation of El Dorado Hills, a rapidly-growing area on Highway 50 abutting Sacramento County with a population of about 30,000 people, has reached the ballot after years of discussion. • Humboldt County : Separate ballot measures that ask whether the county should place the Manila Community Services District and the Redway CSD in the county’s redevelopment zone are on the ballot after much public debate about the merits of redevelopment. • Los Angeles County : Measure C in the City of Calabasas is an advisory measure on whether the city should annex 152 acres on Mulholland Highway to accommodate a proposed 200-room resort and five estate homes. The project would replace an 81-lot subdivision approved by the county in 1998 but never built. Measure D in Calabasas would prohibit changes to open space zoning without two-thirds voter approval. • Los Angeles County : The City of Hermosa Beach will decide on a measure to place the “restricted open space zone” designation on the greenbelt that runs through town and the beach. The measure apparently would restrict construction of recreational facilities and parking lots, and possibly impact large commercial events on the beach. • Marin County : An advisory measure asks voters in the Bolinas Community Public Utility District whether they support a downtown parking plan that precludes meters, clusters parking spots and simplifies signage. • Monterey County : Measure W asks voters in the Monterey Peninsula Water Management District whether the district should study acquiring the system owned by California American Water. • Placer County : The Board of Supervisors has placed on the ballot an advisory measure that asks whether the county should designate 1,136 acres just west of Roseville for development of a private four-year university and adjoining community, a project backed by the Tsakopoulos family (see , August 2003). • Riverside County : In the City of Norco, voters will decide a city charter amendment to require four-fifths City Council approval of changes to agricultural, residential, hillside, planned development and specific plan zones. • San Bernardino County : The City of Redlands has two ballot measures. Measure P would tighten existing growth controls by setting new standards for traffic, noise and building heights. Measure R is a referendum of an 85-house subdivision proposed for lightly developed Live Oak Canyon. • San Mateo County : A measure in the City of Belmont would require subsequent voter approval for development of the rugged hillsides above Carlmont High School and in the San Juan Canyon. • San Mateo County : A measure endorsed by the Half Moon Bay City Council would prohibit the city from using eminent domain to take property primarily for the purpose of “increased city revenue.” • San Francisco : Proposition B is a $208 million bond to improve streets and sidewalks. • Santa Clara County : Voters in the City of Cupertino face three growth-control initiatives. Measure A would limit mixed-use and residential development to 15 units per acre. Measure B would prohibit buildings more than 36 feet tall. Measure C would require most new buildings to be set back at least 35 feet from the street. All three initiatives contain exceptions for the area around Vallco Mall. The initiatives have drawn opposition from the Sierra Club, Greenbelt Alliance and the League of Conservation voters, who argue the measures will prevent infill and transit-oriented development. But a group called Concerned Citizens of Cupertino contend that growth is overrunning schools and congesting streets. • Yolo County : The proposed 1,800-unit Covell Village project — a follow up to the Village Homes project, an environmentally oriented project built during the 1970s — is the subject of Measure X in the City of Davis. An earlier ballot measure requires voters to decide on the 400-acre project because it lies north of the current city limits. • Yuba County : An advisory measure asks voters whether a “destination resort/hotel and American Indian gaming casino” should be constructed near an existing concert amphitheater south of Marysville.

For more than twenty years, the quintessential formula for the Orange County business park has remained more or less the same: the high-rise office building that affords a good view and a sense of feudal superiority over the masses on the freeway below; the Beverly Hills pasta restaurant to put on the calories at lunchtime and the health club to burn them off after work; and the parking garage where the cars are stored 12 hours a day. In the evening the cars disappear, as the upscale workers head back to their townhouses and condominiums a few miles away. The formula has been an almost perfect business model for commercial developers, allowing them to capture every dollar of spending from both businesses and employees from dawn till dusk. Now, at last, these developers are targeting the other 12 hours of people’s lives. They’re building housing – not just conventional suburban condominium complexes, but high-rise residential towers. And, as with the high-rise office park of a generation ago, the high-rise housing trend is focused on Orange County. In Irvine, near John Wayne Airport, for example, the Bosa Development Corporation of Vancouver is building a luxury, 18-story building called Marquee Park Place for the upscale workers who spend most of their time in the high-rise office buildings nearby. It is the first residential structure in Irvine taller than four stories. Meanwhile, a 15-story condo tower is being constructed nearby, adjacent to the campus of the University of California, Irvine. Dwellings in these buildings range in price from $500,000 to about $3 million. Just a few miles away in Anaheim, several high-rises – including a 35-story condo tower – are proposed as part of The Platinum Triangle, a large urban development near Anaheim Stadium. One residential project is known as “Stadium Lofts.” And in Santa Ana, several high-rise residential towers are in the works. The city is also moving forward with the county’s tallest building, a 37-story office tower that withstood a ballot challenge in April. Growth opponents have always feared the “Manhattanization” of California. Westwood neighborhood activists in Los Angeles used to call their organization “Not Yet New York.” But the infill housing trend of the last few years has been more of a “Brooklynization” process, involving the construction of blocky four- to six-story apartment and condominium buildings, not far from employment centers, in neighborhoods already snarled with traffic. One high-profile example is the Playa Vista project near Los Angeles International Airport, but there are many others in Orange County, San Jose, and other land-constrained urban areas. High-rise living has been limited to a few select locations, such as downtown areas in Los Angeles (where high-rise office buildings from the 1970s are now being converted to condos, and where about 30 new residential and mixed-use towers are proposed) and San Diego (where a strong market has led to construction of 15- and 20-story condos throughout the downtown). In each case, extreme residential density has been supported by the context – a plethora of office jobs and a strong rail transit system. The latest high-rise trend, however, is occurring outside transit-rich downtowns. Orange County may be one of the densest urban areas in the nation, but there is no rail transit and the bus system is not widely used by middle- and upper-middle-class workers. Meanwhile, high-rise proposals have been put forward in less dense environments. In downtown Sacramento, one proposal for a rundown section of the K Street mall includes two high-rise residential buildings that would tower dramatically over the Capitol and everything else in downtown Sacramento — except for other proposed condo towers. And in Oxnard, the largest city in Ventura County, a developer has proposed three residential towers – two 48-story buildings and one 31-story building – on the current site of a Levitz furniture store along Highway 101. How far will Manhattanization go in California outside the major downtowns? And, more to the point, will it solve any housing problems that Brooklynization won’t? In Orange County, high-rise residential towers are clearly here to stay as a housing option for the upper middle class. Orange County may not have much in the way of public transit, but in every other way, it is a city. It is a dense collection of interconnected people and activities contained in a small space that is congested and expensive. Despite anecdotal accounts in the press, it’s unlikely that most people who live in these towers will walk to work. More likely, they’ll beat the traffic by driving very short distances on surface streets to UCI or the nearest high-rise pasta restaurant/office complex. In that sense, Orange County’s high-rises are a variation on the classy and venerable high-rise condo towers along Wilshire Boulevard between Beverly Hills and Westwood. Whether or not they help create critical mass for a rail transit system in Orange County is almost irrelevant. It is not clear, however, how transferable the OC high-rise idea is. Virtually all comparable urban areas in the state – except for the Westside of Los Angeles – have rail transit that will attract the high-rises around the stations. As for places like Sacramento and Oxnard, it’s not clear that they’ll ever get built. In Oxnard, at least two of the five members of the usually pro-growth City Council have come out against the towers. And in Sacramento, the high-rise idea is only one of two proposals for the K Street property and there is no guarantee that the city will pick it. Even if they do get built, it’s not clear that these second-tier high-rises will actually sop up housing demand. More likely, they’ll serve as second homes for the well-to-do – either for pleasure or for business. The Oxnard towers are clearly targeted at retirees and others from Los Angeles looking for a weekend home close to the ocean. The location is hardly at the beach, but the towers would peer from the freeway into the coastal zone to catch views of the ocean. And the Sacramento towers would almost certainly get scooped up by legislators, lobbyists, and political appointees who come to town on a Monday-through-Thursday basis – defeating the city’s goal of creating a round-the-clock street life downtown. So Manhattanization is likely to be a selective process in California, limited to a few glitzy locations like Irvine. But as California moves forward into an era of more urban housing, Brooklynization will continue to be the workhorse in most locations.

Orange County's approval of a controversial housing project in the foothills of the Santa Ana Mountains has been overturned by the Fourth District Court of Appeal. In a blunt opinion, the unanimous three-judge panel agreed with environmentalists that the Saddle Creek and Saddle Crest housing subdivisions were inconsistent with the county's general plan and that the project's environmental impact report was inadequate. The court ruled that the county did not use the general plan's prescribed method of measuring traffic impacts, improperly eased development regulations, and did not require compliance with all specific plan requirements. The court ruled that a specific plan amendment approved by the county "gives the developer an unacceptable freebie. In effect, it exempts this project from specific plan regulations on tree preservation, grading and open space, and substitutes new regulations that are less stringent. This, of course, directly contradicts the general plan policy that all new development must comply with all specific plan policies." For years, environmentalists have fought proposed development in the foothills and rugged canyons between the Cleveland National Forest and the flatlands of urban Orange County, arguing that the territory provides important habitat. The project at hand is a proposed 162-home development by Rutter Development for two adjacent, but non-contiguous sites near Cook's Corner. The project drew the attention of environmentalists, in part because it would involve the removal of hundreds of oak trees. In January 2003, the Orange County Board of Supervisors certified an EIR for the project, and approved two area plans and an amendment to the Foothill/Trabuco specific plan. The Endangered Habitats League, Sierra Club, Rural Canyons Conservation Society, Sea and Sage Audubon Society, California Native Plant Society and California Oak Foundation responded with litigation that challenged the project's general plan consistency and environmental review. Orange County Superior Court Judge Ronald Bauer ruled for the county and Rutter, a decision that the Fourth District Court of Appeal, Division Three, overturned. In its decision, the appellate court first dealt with traffic on Santiago Canyon Road. The growth management element of the county general plan sets a traffic policy requiring a level of service (LOS) of D at intersections on Santiago Canyon Road, and a LOS of C on the road. The general plan prescribes the "highway capacity manual" (HCM) as the method for determining the level of service. The EIR revealed that the project would cause the level of service on Santiago Canyon Road to drop to D/E, and later to E. However, under the "volume/capacity ratio" (V/C) method, the projected level of service was B. The county went with the V/C method. Environmentalists argued that this change violated the general plan. The court agreed, calling Rutter's argument that the county did use the proper methodology "semantic sleight of hand." "It is clear the project is inconsistent with the general plan's traffic service level policy," Justice William Bedsworth wrote for the court. "The general plan requires LOS C as determined under the HCM method, and the project does not comply. That it does so under the V/C method is of no import, since the general plan is unambiguous in demanding the evaluation be made by the HCM method." Rutter argued that two measures — namely, payment into two road improvement fee programs — would mitigate traffic impacts to a service level of C under the HCM method. But the court rejected the argument because there was no evidence of what projects the fees would fund, or of what level of service would be achieved. The court then turned to the specific plan amendment. Environmentalists argued it allowed an impermissible "balancing" of specific plan requirements and exempted the project from mandatory policies. The court agreed. The amendment altered tree removal, grading and open space requirements. Rutter argued that the amendment balanced only goals and policies, not development requirements, and that the general plan does not say all policies must be followed. The court did not buy the contention and concluded that the balancing was inconsistent with the general plan. The court also rejected the argument that the amended standards were equivalent or environmentally superior to the specific plan rules. "If the project does not comply with the general plan, neither we nor the developer can justify its approval on the basis that it appeals to us ," Bedsworth wrote. The court pointed to the amendment's requirement for "permanent open space," compared with the specific plan mandate for "natural open space." Under the amendment, permanent open space may have rock walls, utility easements, remedial grading and landscaping — items that fall outside the definition of "natural," according to the court. Next, the court considered environmentalists' argument that the EIR used the wrong threshold of significance for impacts to biological resources. California Environmental Quality Act Guidelines § 15065 (a) states that a project has a significant effect if it substantially reduces habitat for fish or wildlife species, causes a fish or wildlife population to drop below self-sustaining levels, threatens to eliminate a plant or animal community, or reduces the number of or restricts the range of an endangered, rare or threatened species. The county, however, defined "substantial effect" to mean loss or harm that "would cause species a native plant or animal community to drop below self-perpetuating levels on a statewide or regional basis, or would cause a species to become threatened or endangered." The court concluded that the county's threshold of significance was "impermissibly lenient." The environmental groups further argued that the EIR improperly deferred analysis and mitigation of project impacts. The court dismissed all but one of those contentions, concluding that the EIR put off mitigation of construction noise. After the Fourth District filed its decision, the county and Rutter asked the court to reconsider. The court refused, saying the requests for rehearing were based on analysis, contentions and authorities that should have been raised earlier. The Case: Endangered Habitats League v. County of Orange , No. G034416, 05 C.D.O.S. 6710, 2005 DJDAR 9227. Filed June 29, 2005. Order denying rehearing and granting request for publication filed July 29, 2005. The Lawyers: For Endangered Habitats League: Raymond W. Johnson, Johnson & Sedlack, (951) 506-9925. For the county: Jack Golden, deputy county counsel, (714) 834-3300. For Rutter Development: William D. Ross, (650) 843-8080.

Fallout from the U.S. Supreme Court’s recent decision permitting use of eminent domain to aid private development continues to rain down on the state Capitol. With two weeks remaining before the Legislature adjourned, it was unclear whether any eminent domain bill would pass this year. However, lawmakers did ensure that no constitutional amendment limiting eminent domain made the November special election ballot. The eminent domain controversy also has focused new attention on a redevelopment project in California City, in which the city used redevelopment and eminent domain powers to lure a Hyundai automobile test track. Although the Supreme Court’s decision has little direct impact on the California City situation, detractors — including the attorney general’s office — have called the project a “poster child” for redevelopment abuse. That charge comes at a time when defenders of eminent domain use are pointing to the state’s redevelopment laws as assurance that local governments must use eminent domain sparingly. In Sacramento, the Senate Local Government Committee conducted an informational hearing on the Supreme Court’s decision in . In a 5-4 decision issued in June, the Supreme Court upheld the Connecticut city’s taking of a handful of residential properties to make room for an economic development project (see , August 2005, July 2005). The committee meeting attracted a full house, including lawmakers who are not committee members, but no decisions were made. Instead, sharply contrasting viewpoints came to the forefront. Timothy Sandefur, of the Pacific Legal Foundation, and Michael Berger, of Manatt, Phelps & Phillips, presented testimony from the property rights perspective and were bolstered by state Sen. Tom McClintock (R-Thousand Oaks), who argued that cities abuse redevelopment powers. Representing public agencies’ point of view were Bill Higgins of the League of California Cities’ Institute for Local Government, and Joseph Coomes, Jr., of McDonough, Holland & Allen. McClintock peppered them with hostile questions, but they received a friendlier reception from Democratic lawmakers. Sandefur and Berger recommended that lawmakers: • Clarify the definition of “public use” for which eminent domain may be used • Tighten the definition of “blight” • Increase the amount of time in which to challenge a blight designation • Shorten the period during which the government may designate property as blighted. Higgins and Coomes urged a more cautious approach and provided examples of successful redevelopment projects. They and Chief Deputy Attorney General Rick Frank noted that California laws regarding redevelopment and eminent domain are not the same as laws in other states. The hearing did not directly address the three constitutional amendments and five bills lawmakers introduced in response to . As went to press, none of the bills had passed, although it appeared some action was possible before the Legislature went home on September 9. The legislation is: • ACA 22 (La Malfa) and SCA 15 (McClintock). Identical constitutional amendments (which require voter approval) that seek to prohibit the taking of private property for private use (see , August 2005). • AB 590 (Walters). Would prohibit government agencies from using eminent domain to take private property for private business development. • AB 1162 (Mullin) and SB 1026 (Kehoe). Similar bills that would impose a two-year moratorium on the taking of private, owner-occupied residences for private use. During the moratorium, the California Research Bureau would study 10 years worth of government condemnations of owner-occupied homes for private use. • SCA 12 (Torlakson). A constitutional amendment that would prohibit the use of eminent domain to take owner-occupied residences for private use. • SB 53 (Kehoe). Essentially restates a number of existing provisions of redevelopment law regarding eminent domain. • SB 1099 (Hollingsworth). Prevents the taking of agricultural property unless the government agency retains ownership, or the property is transferred for use as a health care facility, for public utilities or for transit facilities. McClintock and other Republicans clearly believe they have a political winner in their proposed constitutional amendments. Fearing they could get left behind, Democrats responded with Torlakson’s constitutional amendment, and the Mullin and Kehoe legislation. In general, redevelopment supporters and local governments oppose the Republican legislation. However, they also worry that the Democrats’ proposed two-year moratorium would stall or kill redevelopment projects that are in-process. During the post- controversy, redevelopment supporters insisted that eminent domain abuse is exceedingly rare in California. Even property rights advocates have been hard-pressed to name instances in which local government took decent housing to accommodate a private development. With both sides on the lookout for abuse, the California City project has received increased scrutiny. California City is a largely undeveloped city of 11,500 people spread over 203 square miles of the western Mojave Desert. Three years ago, the city added 15,000 acres to an existing redevelopment project area. The city then went about acquiring roughly 200 parcels, which it turned over to Hyundai for construction of a test track and associated facilities (see , May 2004). Some property owners sold willingly, but dozens of others sold only after the city commenced eminent domain proceedings. About 15 holdouts are still in court. In the meantime, Hyundai has built its 4,300-acre project. Some California City residents filed a validation action challenging the redevelopment project area expansion. That lawsuit has ground forward slowly but is scheduled for trial this month in Kern County. The condemnation proceedings are on hold until the court decides the validation lawsuit. In July, the attorney general’s office filed an amicus brief in the validation action arguing that the city’s basis for placing the property into a redevelopment area — that the parcels were irregularly shaped, too small to use and lacked road access — were bogus. “This is not a case in which there are some vacant parcels in a deteriorated city — parcels that should be included in the redevelopment area so that slum conditions can be properly addressed,” the brief states. “This entire area is bare land.” June Ailin, an attorney representing some California City property owners, welcomed the attorney generals’ interest. But she questioned whether the matter was worthy of the attention it has received. “I have talked to a number of people who do not understand that this is not an eminent domain case,” Ailin said. “I don’t think has anything to do with this care, or has anything to do with the eminent domain cases .” California City officials, who tried to keep the attorney general out of the validation lawsuit, contend they have done no wrong in bringing a $50 million private investment and about 100 jobs to town. Contacts: Timothy Sandefur, Pacific Legal Foundation, (916) 419-7111. Bill Higgins, Institute for Local Government, (916) 658-8250. California City redevelopment validation action: , Kern County Superior Court Case No. 248874JIK.