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State laws approved seven years ago requiring water assurances for large development projects appear to be of minimal aid in determining whether the state and regions have enough water for the future. That's the conclusion of a California Research Bureau (CRB) report released with zero fanfare in August. According to the CRB, a 2001 law requiring water verification for subdivisions of more than 500 units reached only about 7% of new units approved from 2004 through 2006. A different law approved in 2001 for large non-residential developments reached only about one-fifth of the commercial and industrial floor space built during that same period. What researchers also found was an "incredibly frustrating" lack of data, said Rani Isaac, the economist and senior research specialist who wrote the CRB report. There is no central repository of information on development or water usage. Locating, compiling and then testing data on residential development available to public agencies took months, Isaac said. To study non-residential construction, the CRB had to purchase data from McGraw-Hill, she said. The 14-page report concludes with this: "The paucity of data is becoming a barrier to infrastructure investment. Good decisions require good data." The state Legislature closed its two-year session at the end of August with virtually no action on the issue of water. A $9 billion water bond proposed by Gov. Schwarzenegger and U.S. Sen. Dianne Feinstein went nowhere, although lawmakers could consider a bond during ongoing budget negotiations. In 2001, lawmakers approved SB 221 (Kuehl) and SB 610 (Costa). Senate Bill 221 requires a city or county to get written verification of a 20-year water supply from a public water system for subdivisions of more than 500 dwelling units. Senate Bill 610 extended an existing requirement for public water purveyors to prepare water supply assessments for large development projects, including residential projects of more than 500 units and large non-residential projects of certain square footages. The bill also amended state law to require water agencies to produce urban water management plans every five years, rather than every 20 to 25 years (see CP&DR , October 2001 ). Senate Bill 221 author Sen. Sheila Kuehl (D-Santa Monica) asked the CRB to examine the impact of the 2001 legislation with the possible intent of reducing the SB 221 threshold to 250 units. What the CRB found was that the vast majority of residential and non-residential development is untouched by the two laws. About 25,000 of 356,000 new residential units created from 2004 through 2006 were in projects of more than 500 units. There were only 33 such projects, and 16 of them were in two counties — Riverside and Orange. Had the threshold been 250 units, another 37,000 units in 107 projects would have come under the law. In the non-residential sector, 157 projects containing 20.3% of the total area of nonresidential development fell within SB 610's requirements. Nearly all of these projects were in metropolitan Los Angeles or San Diego County. Isaac concluded that California still needs more interaction between water planning and land use planning. "That way, so much doesn't have to be settled by court cases," she said, noting the number of cases involving "paper water" in recent years. "Certainly," she added, "it seems like there is more demand than supply." Local and regional agencies and developers in water-constrained areas should know whether supplies match the predicted future demand, she said. That's not necessarily the case, however. Development interests fought SB 221 and SB 610, had little interest in the CRB study, and have even less interest in broadening the laws. Randy Kanouse, a lobbyist for the East Bay Municipal Utility District who helped craft the 2001 legislation, said the CRB report is of limited use. The 2001 legislation, he said, "was intended to ensure that we grow in a way that doesn't cause harm to existing communities, existing water customers." The data in the report does not determine whether that goal is being met. Kanouse said the state needs to track water supply assessments in high-growth areas and monitor their accuracy. "We need to understand on a local level where we are facing a hardship and need a new water supply," he said. Isaac conceded that she was cautious, as were state water agency representatives who participated in preparation of the report. Still, the report contains several suggestions — the measures are not framed as recommendations — that even the skeptical Kanouse considered worthwhile. Among the suggestions: • The state (either the Department of Water Resources or the State Water Resources Control Board) could collect local water assessment plans and assess whether those plans actually comply with requirements to ensure a sufficient water supply and adequate water quality. • The state could compare urban water management plans with local growth plans to determine where water could become a development constraint. • Before the Department of Real Estate issues a white paper permitting developers to sell homes in a new subdivision, the DRE could require a water certification letter from a state agency. The DRE already requires a letter from the Public Utility Commission when a private water company serves a new project. • Lawmakers could strengthen the Urban Water Management Planning Act to ensure agencies actually prepare the required plans. • Some entity, possibly the Resources Agency, could compile a database with all urban water management plans, city and county general plans, and water plans. The database would be publicly searchable, "would aid in the preparation of a new State Water Plan, and allow resource economists to do a better job of accounting for the state's current consumption," according to the CRB report. Despite the issuance of the report a month before the end of the legislative session, and despite the governor's declaration of a drought emergency earlier this year, lawmakers largely ignored the issue of water. Kuehl, who is termed out of the Legislature, did not pursue amendments to the 2001 laws. Assemblymembers Paul Krekorian (D-Burbank) and Loni Hancock (D-Berkeley) proposed a bill that would have required new buildings to fully offset new water consumption through the implementation of conservation measures and fees that would fund water efficiencies elsewhere. Proponents, including the Planning and Conservation League, said the measure would permit development without the environmental or fiscal expense of new water projects. The provisions in the measure, AB 2153, also would have let developers bypass SB 221. However, the bill failed to pass the Assembly. Assembly Bill 2175 (Laird) would have required a 20% reduction in per capita urban water usage by 2020 and directed DWR to demand agricultural water cutbacks of at least 500,000 acre-feet. That bill died in the Senate. The CRB report is available on the State Library's website, www.library.ca.gov/crb/CRBSearch.aspx .

NOTICE REQUEST FOR QUALIFICATIONS RFQ-PLN09-12 Omnitrans is accepting Qualifications Statements for: PRE-DEVELOPMENT, CONCEPTUAL DESIGN AND VISIONING SERVICES FOR A DOWNTOWN INTERMODAL TRANSIT STATION AND TRANSIT VILLAGE IN SAN BERNARDINO, CA The sealed Qualifications Statements are due at 4:00 P.M. PST, Monday, October 20, 2008 at the Omnitrans facility located at 1700 West Fifth Street, San Bernardino, CA, 92411. Statements will not be publicly opened.  Statements received after that time will not be considered and will be returned unopened. There will be a non-mandatory, pre-submittal, information and networking conference, with a question and answer opportunity, on Friday, October 3, 2008 at 1:00 p.m. Omnitrans affirmatively ensures that Disadvantaged and Women-Owned Business Enterprises will be afforded full opportunity to submit Qualifications Statements and will not be discriminated against on the grounds of race, color, or national origin.  Request for Qualifications documents may be obtained by visiting Omnitrans' website at www.Omnitrans.org or by contacting: Omnitrans 1700 West Fifth Street San Bernardino, CA 92411 Contracts Manager, Linda Warwick (909) 379-7128 (909) 885-2441 FAX

The validity of a 1915 subdivision map has been rejected by the First District Court of Appeal in a decision that calls into question any subdivision recorded before 1929. The court determined the 1915 map for a 25-lot subdivision in southern Sonoma County is not valid today because the county had very little discretion under the Subdivision Map Act in place at the time. The decision provides a significant victory to local governments concerned about an untold number of antiquated subdivision maps that do not conform to modern-day land use planning principles. Under the map act's current grandfather clause, an old map is valid today only if the local government had authority to regulate the design and improvement of the proposed subdivision. Although the map act was first enacted in 1893, not until 1929 did the act give local governments the ability to regulate the configuration of parcels and the provision of streets, drainage and other services to serve subdivisions. The map act as it stood in 1915 offered the local government little discretion as long as the map properly depicted certain items, the court found. " t was the landowner who determined the size and configuration of the lots, the existence and location of roads and utilities, and whether to dedicate land to the public and, if so, where and how much," Justice Sandra Margulies wrote for the court. "The mere requirement that, once the subdivider had made these decisions, they be accurately reflected on the map did not constitute regulation of the subdivision." Thus, the court concluded, the 1915 subdivision did not qualify for recognition under the map act's grandfather clause. The decision is the most substantive on antiquated subdivisions since the state Supreme Court's landmark ruling in Gardner v. County of Sonoma , (2003) 29 Cal.4th 990 (see CP&DR , March 2003 ). In Gardner , the state high court ruled that maps recorded prior to the first Subdivision Map Act in 1893 could not be validated today. The Gardner decision also cast doubt on maps recorded prior to 1929, when the Subdivision Map Act was amended to introduce the concepts of tentative and final maps and to offer local governments substantive discretion. Deputy Sonoma County Counsel Sue Gallagher said the First District's decision indicates "the courts are going to look to see if the local jurisdiction did have and exercise any discretion. It needs to be some sort of substantive regulation of the underlying subdivision itself." The Board of Supervisors' resolution approving the 1915 map merely certified that the map was signed and met the technical requirements for recording, according to Gallagher, the winning attorney in the latest case and in Gardner . The board's action was ministerial and involved no discretion over lot configuration or infrastructure, she said. That made the map ineligible for the map act's grandfather clause, she contended. James Laughlin, a deputy Solano County counsel, called the decision "very helpful" for a case Solano County has appealed. In March, Superior Court Judge Paul Beeman upheld the validity of a 1909 map depicting 25 parcels on 250 acres of agricultural land on the outskirts of Fairfield. The county has appealed that decision to the First District, Division Five. The outcome of Abernathy Valley, Inc. v. County of Solano , No. A121817, could have implications for numerous other old maps in the county, Laughlin said. Some of those maps depict hundreds of tiny lots and make no provision for public services, he said. Similar litigation is under way in Yolo County, as well. The Sonoma County controversy originated in 2005, when property owner Witt Home Ranch, Inc., filed an application with the county seeking certificates of compliance for 25 lots in the 120-acre "Houx subdivision." Although the subdivision map was recorded in 1915, no one ever acted on it and the same family has owned the 120-acre parcel outside Petaluma since the 1930s. The certificates of compliance, however, would provide legal recognition for 25 lots. The county's Permit and Resources Management Department refused to issue the certificates of compliance. On appeal, the Board of Supervisors upheld that decision, as well as two other decisions against other property owners seeking certificates of compliance. The board said it would not recognize maps recorded prior to 1919, and would consider maps recorded from 1919 to 1929 on a case-by-case basis because a 1919 amendment to the map act provided the county some degree of substantive review. Witt Home Ranch sued, arguing the 1915 map provided a legal subdivision. The property owner also contended that Gallagher and Supervisor Valerie Brown violated its due process rights. Sonoma County Superior Court Judge Allan Hardcastle determined the map was not covered by the grandfather clause and that there had been no violation of due process. A unanimous three-judge panel of the First District, Division One, upheld that decision on appeal. Witt Home Ranch contended that the 1915 statute's regulation of development was sufficient for the map to qualify under the grandfather clause. The law at the time required a map to depict and identify lots, highways and property set aside for public dedication, Witt Home Ranch noted. That is enough to meet the grandfather clause's requirement that a map be approved subject to rules in place at the time regarding design and improvement, the property owner argued. The county countered that the 1915 law did not regulate design and improvement. The court agreed. "The requirement that recorded maps accurately depict various features of the subdivision constituted regulation of the drawing depicting the subdivision, rather than regulation of the subdivision's improvement and configuration," Margulies wrote. "Similar to the 1865 map in Gardner , the Houx map is a planning anachronism, merely a grid laid across a parcel of land," Margulies continued. "There is no indication that any consideration was given to the appropriate siting of residences, lot drainage, the feasibility of construction or utility service, or any of the many other issues that arise when development occurs. It is difficult to imagine a plan for real estate development more at odds with modern subdivision regulation." For its due process claim, Witt Home Ranch argued that the board's policy of refusing to recognize pre-1919 maps was a "defacto land use ordinance" enacted without proper procedures, that the board's decision was based on communications outside the administrative process, and that Gallagher's advice to the board on the appeal was improper because she also advised planning staff members. The court rejected all three contentions. It found that the policy merely provided guidance to staff, there was no evidence of improper communication, and Gallagher was simply acting as a legal advisor. The Case: Witt Home Ranch, Inc. v. County of Sonoma , No. A118911, 08 C.D.O.S. 9802, 2008 DJDAR 11923. Filed July 29, 2008. The Lawyers: For Witt Home Ranch: Michael Van Zandt, Hanson Bridgett, (415) 777-3200. For the county: Sue Gallagher, county counsel's office, (707) 565-2421.

The California Supreme Court has accepted a second case involving the California Environmental Quality Act's statute of limitations. In the latest case, the Sixth District Court of Appeal reinstated a lawsuit after a trial court judge had thrown the suit out for being filed after the statute of limitations expired. The trial court judge held the litigants to CEQA's typical 30-day deadline, while the Court of Appeal ruled that a 180-day deadline applied because the case appeared to involve an agency approving a project without environmental review (see CP&DR Legal Digest , July 2008 ). The case concerns construction of a recreation trail that was required as mitigation for development of academic facilities and housing at Stanford University. Subsequently, Santa Clara County agreed to a new proposed alignment for one trail that would shift the trail into unincorporated San Mateo County and the Town of Portola Valley. An environmental organization argued that Santa Clara County never conducted an environmental review before approving the new alignment, instead deferring to San Mateo County and Portola Valley. Stanford and Santa Clara County argued environmentalists' lawsuit was filed after the 30-day statute of limitations concluded. But the Sixth District ruled that environmentalists should at least have the opportunity to show that the 180-day statute of limitations applied (the suit was filed within that period) and to argue that environmental review of the trail alignment was inadequate. The legal question that the state high court accepted is this: What statute of limitations applies after a public agency files a notice of determination stating that an entire project will not have a significant impact on the environment? The case is Committee for Green Foothills v. Board of Supervisors , No. S163680. A second, already-pending case involves the statute of limitations for a case regarding the City of Stockton's lack of environmental review for a Wal-Mart Supercenter. In that case, the Third District Court of Appeal ruled that the statute of limitations never commenced because there was no valid project approval (see CP&DR Local Watch , February 2008 ). The case, Citizens for Sensible Planning v. City of Stockton , No. S159690, has been fully briefed but no date for oral argument has been set.

An appellate court has upheld an airport land use compatibility plan that a Solano County landowner argued was overly restrictive. The court rejected the landowner's contention that Solano County's Travis Air Force Base Land Use Compatibility Plan (TALUP) was inconsistent with an Air Force plan because the TALUP used a tighter noise threshold and assumed greater airport use than did the Air Force. The court found nothing in state law that prevented the country from being more restrictive of growth around an airport. The decision is the latest in litigation filed by Muzzy Ranch Company, which owns about 5,000 acres in unincorporated Solano County. Last year, the state Supreme Court ruled that the TALUP qualified for a "common sense" exemption from the California Environmental Quality Act because the plan, by freezing existing zoning, had no potential for causing significant environmental impacts ( Muzzy Ranch Co. v. Solano County Airport Land Use Com. , (2007) 41 Cal. 372; see CP&DR Legal Digest , July 2007 ). After the state Supreme Court's decision, the case made its way back to the First District Court of Appeal, Division Five, for further proceedings. Having lost its CEQA arguments, Muzzy Ranch this time argued that the TALUP adopted in 2002 was invalid because it did not mimic a 1995 Air Force Installation Compatible Use Zone (AICUZ) study. The Air Force document used a 65 decibel community noise equivalent level as a threshold, while the TALUP employed a 60 dB CNEL threshold. In addition, Solano County's Airport Land Use Commission (ALUC) developed its own "maximum mission" scenario for Travis that far exceeded anything spelled out by the Air Force. The idea behind both the county's plan and the Air Force's study was minimization of incompatible new development around the base. But the different standards were critical because the 60 dB noise contour combined with county expectations of increased low-level flights placed more than 600 square miles into a zone in which the plan called for freezing existing land use designations. That meant huge swaths of agricultural land could not be developed unless four-fifths of the Board of Supervisors was willing to override the TALUP and find that development would be compatible with the airport. Simply shifting to the 65 dB contour would shrink this zone dramatically. Muzzy Ranch argued that a requirement in the State Aeronautics Act (specifically, Public Utilities Code § 21675, subdivision (b)) required the county to adopt or incorporate the provisions of the Air Force study. But the court found that state law only required the county plan to be "compatible with" the Air Force document. The court relied heavily on SB 1468, a 2002 measure that requires general plan and airport land use compatibility plans to consider the impact of urban development on the military. That legislation, the court noted, "was a response to base closures after nearby development interfered with base operations." "Viewing the statutory scheme as a whole," Justice Lawrence Stevens wrote for the unanimous three-judge panel, "we conclude that ‘consistent with' means that the land use plan must be compatible with the applicable AICUZ. Because the purpose of the Senate Bill 1468 was to protect the operations of military installations from encroachment by development, compatibility in this context means that the land use plan must be at least as protective of airport operations as the applicable AICUZ, but it need not literally adopt the safety and noise standards of the AICUZ. "Critically," Stevens continued, "there is no reason to think that the Legislature intended to prohibit ALUCs from adopting land use plans that prohibit more development that would be prohibited using the AICUZ safety and noise standards." Muzzy Ranch argued that the Solano County commission's use of the 60 dB standard and its own "maximum mission" scenario was unjustified. In rejecting the argument, the court cited Caltrans' "California Airport Land Use Planning Handbook," which states, "For the purpose of airport land use compatibility planning, the department's advice is that CNEL 65 dB is not an appropriate criterion for new noise-sensitive development around most airports." And the handbook advises ALUCs to base planning on a multiplier of the military's maximum mission for the base because the military forecasts "are not very meaningful." The Case: Muzzy Ranch Co. v. Solano County Airport Land Use Commission , No. A104955, 08 C.D.O.S. 7642, 2008 DJDAR 9173. Filed June 18, 2008. The Lawyers: For Muzzy Ranch: Richard C. Jacobs, Howard, Rice, Nemerovski, Canady, Falk & Rabkin, (415) 434-1600. For the county: James Laughlin, county counsel's office, (707) 784-6140.

A Contra Costa County order directing a water ski club to remove 28 unpermitted dwelling units plus docks and accessory structures has been upheld by the First District Court of Appeal. Despite the fact that some of the structures have been in place for 40 years, the county has the authority to order their removal, the court ruled. The court rejected the ski club's argument that the abatement order was a taking of private property and violation of constitutional rights, and the court denied the club's request to limit the county's abatement order. Golden Gate Water Ski Club purchased Golden Isle — a 5-acre island zoned for agriculture in the Sacramento-San Joaquin River Delta — in 1966. Without obtaining permits, the club built or installed 15 dwelling units in the form of cabins and travel trailers, and also erected decks, docks and other structures. Contra Costa County notified the property owner that development violated land use regulations and advised the club to apply for a rezoning and trailer park permit. The club filed an application in 1971, but the application foundered for years while the club and county went back and forth. At the county's urging, the club withdrew the application in 1979. Apparently, the situation was quiet for a while until the county in 2003 posted a notice of violation that the ski club violated a variety of land use, health, sewage and floodplain laws. By that time, the development had grown to 28 dwelling units and 28 docks. The club made a number of proposals to legalize the development, but the county found none of the plans to be viable. In February 2005, the county code enforcement officer issued the ski club an order to abate a public nuisance by demolishing and removing all structures from Golden Isle. The club appealed to the Board of Supervisors, which upheld the order and told the club to remove all structures within 90 days. The club sued, asking the court to set aside the order and provide relief for inverse condemnation, violation of civil rights and fraud. Contra Costa County Superior Court Judge Joyce Cram rejected the contentions and ruled for the county, a decision a unanimous three-judge panel of the First District, Division One, upheld. The court broke down its opinion into multiple sections, the first of which addressed the ski club's argument that its development is not a public nuisance under the Civil Code. The court didn't parse the legal definitions, though. What matters, the court said, is that the county has the authority to act on development that violates land use and related ordinances. The court then moved on to the ski club's central argument, which was this: Because the club had used its facilities for so long, and because the county's enforcement was inconsistent and slow, the county was barred — "estopped" is the legal term — from abating the club's use of its property. The club said a county attorney said in 1974 the county would not hassle the club, noted that the county took no action for years and broke a promise in the late 1970s to form a committee to address recreational uses in the Delta. The court was unconvinced. "On these facts the club could not have assumed its development complied with the county's ordinances," Justice William Stein wrote for the court. "To the contrary, the county at all times has maintained that the development was illegal." The county was enforcing a public interest in open space and land use limitations, Stein wrote. "We see little injustice in compelling the club to remove structures constructed or installed without a permit either before contacting the county or after the county informed it the development was illegal, and without even attempting to comply with the law," he continued. The club asked the court to at least limit the abatement order, but the court would have none of it. " ranting the club partial relief would encourage others to violate land use and zoning ordinances on the assumption or hope their continued violation will allow them to circumvent the planning process," Stein wrote. The court had no more patience with the club's contention that the nuisance abatement amounted to a taking of private property or violation of civil rights. "The club never had a property right to develop Golden Isle in violation of the county's land use requirements," the court concluded. The Case: Golden Gate Water Ski Club v. County of Contra Costa , No. A116712, 08 C.D.O.S. 9612, 2008 DJDAR 11745. Filed July 25, 2008. The Lawyers: For the ski club: Ronald Zumbrun, (916) 486-5900. For the county: Silvano Marchesi, county counsel, (925) 335-1800.

Since 2005, the American Institute of Architects has contributed technical assistance on sustainability to over 30 communities through its Sustainable Design Assessment Team (SDAT) program, including Windsor (2008) and Culver City (2007) in California. We are pleased to announce that the 2009 Request for Proposals/Applications for the SDAT program is now available, and encourage all interested parties to download the document at http://www.aia.org/liv_sdat . The site also includes documentation from former and current SDAT communities and projects that can guide applicants for the 2009 program.  Since 1967, the AIA's design assistance programs have included over 500 professionals from 30 disciplines and provided millions of dollars in assistance to more than 160 communities across the country. For more information about the SDAT program, interested communities can visit the AIA's website, www.aia.org/liv_sdat . In addition, the AIA's Center for Communities By Design will be holding a conference call and briefing on the SDAT program and RFP on September 19, 2008, at 3:00 Eastern Standard Time.  If you wish to participate in the briefing, please sign up via email by sending the following information to communitiesbydesign@aia.org . Name Organization Address City, State, Zip Telephone Number Email  If you have any questions about the SDAT program, please feel free to contact us.

Senate Bill 375 is alternately being described as the most important land use legislation since the California Coastal Act of 1976, and a step in the right direction. Only time will tell whether the bill is a landmark or an incremental step, but there is no denying that SB 375 author Sen. Darrell Steinberg (D-Sacramento) aimed high. "At the heart of this effort," Steinberg said, "is the need to integrate our housing and transportation plans to create sustainable communities." Steinberg's bill was by far the most significant land use legislation approved during the two-year legislative session that concluded on August 31. The collection of interest groups that endorsed SB 375 was remarkable: The California Building Industry Association, the California Major Builders Council, the League of Conservation Voters, the Trust for Public Land, the League of California Cities, the California State Association of Counties, the California Chapter, American Planning Association (CCAPA), and the Congress for the New Urbanism all endorsed the bill. Affordable housing advocates held out for a long time before eventually offering tepid support. The Schwarzenegger administration has not taken a public position on the bill, but the governor is expected to sign it. The legislation — which applies within the state's 17 metropolitan planning organizations — was the product of numerous, prolonged meetings spread over nearly a year. The final product is a very long, complex measure that addresses a variety of related topics. The primary parts of the measure are these: • A regional greenhouse gas reduction/transportation planning process that results in a "sustainable communities strategy" for the region. • California Environmental Quality Act (CEQA) streamlining for development projects consistent with the sustainable communities strategy, including a CEQA exemption for some infill housing projects with an affordable component. • A mandate that transportation projects consistent with the sustainable communities strategy receive state funding. • Alignment of the regional housing needs allocation (RHNA) and regional transportation plan (RTP) processes. The RHNA cycle will be eight years, while RTPs will be updated every four. The regional planning process calls for a regional advisory committee and local agencies to work with the California Air Resources Board (CARB) on setting greenhouse gas (GHG) reduction targets for each of the 17 regions. The target, over which CARB has final say, is intended to provide the basis for the sustainable communities strategy. Those regions that cannot meet their GHG targets through a sustainability strategy must prepare an alternative planning strategy that demonstrates how targets might be reached. The RHNA figures developed by the state Department of Housing and Community Development (HCD) and by councils of government are supposed to account for a region's sustainable communities strategy. General plans, however, do not have to be consistent with the regional strategy — a provision demanded by local government. As for CEQA, the measure exempts certain "transit priority projects." These have a density of at least 20 housing units per acre, are within a half-mile of a transit corridor, are smaller than eight acres and 200 units, provide at least 20% of units as affordable or set aside a certain amount of open space, comply with green building standards and are located on sites with no significant environmental constraints. While the exemption might prove limited, streamlining is available for other projects. A mixed-use project that is consistent with the sustainable communities plan would not have to undergo analysis of greenhouse gas emissions, cumulative traffic impacts or growth-inducing impacts, and a reduced density alternative would not be required. In addition, local agencies may adopt a standard set of traffic mitigation measures for projects that are at least 10 units per acre and 75% residential. Qualifying projects would not have to provide any other traffic mitigation. The legislation extends the housing element planning period from five years to eight. The council of government would distribute RHNA numbers at the very beginning of the planning period, which is also when the RTP and sustainable communities planning periods commence. Cities and counties must submit their housing elements to HCD no more than one year into the planning period, and they then have three years to complete all rezoning required by the housing element. Transportation projects and programs must be consistent with the sustainable communities strategy to be eligible for state funding sources. However, projects programmed in the State Transportation Improvement Program through 2011 are exempt from this consistency requirement, as are projects and programs in any local sales tax program approved by voters before 2011. "This is the bill that moves toward looking at land use as a regional issue," said Pete Parkinson, CCAPA's vice president of policy and legislation, and one of SB 375's negotiators. The bill achieves the regional perspective by targeting greenhouse gas emissions from the transportation sector, he said. And, indeed, one clear goal of the bill is to reduce the amount of driving that Californians do by emphasizing mixed-uses, higher densities and transit. "We definitely think it's progress for the state," said Ken Kirkey, planning director for the Association of Bay Area Governments (ABAG). "And it's definitely progress for parts of the state that have not moved as far and as fast on linking up transportation with land use." Kirkey noted that ABAG began moving in this direction in 2002, when it produced policy-based projections for housing growth based on transit service and available infill sites. Still, ABAG's working relationship with the Metropolitan Transportation Commission (MTC), which produces the Bay Area's RTP, has been tense at times. (In most regions other than the Bay Area, a council of governments serves as both the MPO and regional transportation planning agency.) Under SB 375, ABAG and the MTC will have to work together, Parkinson said. Success, however, requires money, said Kirkey. City officials often understand the need for development of "complete communities," but they need money to carry out plans, he said. "The state needs to get much more consistent with how money is spent and where money is spent in relationship to SB 375," Kirkey said. Jeff Loux, director of the land use and natural resources program at University of California, Davis, endorsed the concept of regional sustainability planning. However, without a requirement that city and county general plans comply with the sustainable communities plan and the regional transportation plan, there is nothing that prevents local governments from approving the wrong type of development, he said. This has been the case with the Sacramento Council of Governments' blueprint, Loux said. Denser projects in the inner ring have the endorsement of the blueprint, but the document is unable to prevent ongoing large-lot sprawl on the urban edge, he said. In 2007, Steinberg included growth management techniques in the bill, such as guaranteed protection for certain resource lands. The author dropped many of those provisions to gain support from the development industry. Steinberg's bill met stiff opposition in the Assembly, which provided the final arena for opponents such as the California Chamber of Commerce, the California Association of Realtors and the California Association of the Councils of Governments to try to defeat the legislation. The opponents found allies in Republican lawmakers who defended the status quo, decried state intrusion and questioned climate change. "This bill changes the way land use planning is done," complained Assemblyman Bob Huff (R-Diamond Bar). "If you don't believe in smart growth, you are not going to get any funding. … Suburban communities that are built out are going to be left out of this type of planning." Assemblyman Michael Duvall (R-Yorba Linda) said the only way to comply with SB 375 would be to shift funding from highways to public transit. "It simply makes no sense to shift more money to transit programs when nobody uses it," he said. "The voters want to build more highways. Now's not the time to take money away." Assemblyman Rick Keene (R-Chico) charged that SB 375 permits CARB to make land use decisions "superseding local government almost completely." "This is a monumental change in course," Keene said. "I think that the locals are better at making these decisions than they are." But SB 375 defenders said that local government organizations would not have endorsed the measure if local officials believed the state was superseding local land use authority. Plus, Assemblyman Marc DeSaulnier (D-Martinez), who shepherded SB 375 through the Assembly, noted that 5 of 11 members of CARB are local elected officials, as are all MPO board members. "The era of dollar-a gallon gasoline … of planning the way we have in the past, that era has passed," DeSaulnier said. The bill ended up passing the Assembly 49-22, with several Republicans casting "aye" votes. Among them was Assemblyman Guy Houston (R-San Ramon), who endorsed the legislation's "first of its kind CEQA reform." The bill, he said, "will result in housing built in a timely manner." Will SB 375 usher in a new era? Parkinson, of the state APA, said no one should expect immediate results. "It's probably going to take a couple cycles to work itself through," he said of the system devised by SB 375. "The question is going to be whether people have the patience for that." 2008 Land Use Legislation Summary CEQA • AB 2230 (LaMalfa). Would have revised exemptions for the payment of CEQA filing fees to fund Department of Fish and Game reviews. Failed in Assembly committee. • SB 1165 (Kuehl). Would have required recirculation of any EIR that is more than five years old when a project relies on the EIR, and increased public access to preliminary draft EIRs. Failed in Senate. • SB 1210 (Dutton). Would have created a "short form" environmental study process for certain projects in urban areas. Failed in Senate committee. Fees and revenues • AB 938 (Calderon). Would have created a stormwater management process whose programs could be funded by user fees. Stalled in Senate. • AB 1221 (Ma). Permits local officials to use property tax increment to finance bonds for infrastructure within transit village development districts. Approved by the Legislature. • AB 1709 (Hancock). Authorizes the use of Mello-Roos financing for energy efficiency and renewable energy improvements. Approved. • AB 1836 (Feuer). Would have authorized city councils and boards of supervisors to create infrastructure finance districts without voter approval to issue bonds and divert tax increment to retire the debt. Stalled in Senate committee. • AB 2173 (Caballero). Makes it easier for school districts to impose "Level II" fees on new development. Approved. • AB 2218 (Gaines). Would have altered procedures for Proposition 218 fee elections. Stalled in Senate committee. • SCA 12 (Torlakson). Would have exempted stormwater and urban runoff management fees from Proposition 218 vote requirements. Stalled in Senate. • SB 974 (Lowenthal). Imposes a fee on cargo containers going through ports in Long Beach, Los Angeles and Oakland to fund infrastructure and mitigate air pollution. Approved. • SB 1335 (Negrete-McLeod). Eliminates the voter approval requirement for the City of Colton to establish an infrastructure finance district in the Agua Mansa Enterprise Zone and issue bonds. Approved. • SB 1617 (Kehoe). Would have authorized the state to levy a $50 annual fee on dwellings located in an area served by the California Department of Forestry and Fire Protection. Dropped by author. Housing • AB 1129 (Arambula). Changes state grant criteria so that housing trust funds in counties of less than 425,000 people can better compete for funding. Approved. • AB 2000 (Mendoza). Allows a city or county that exceeds production of its fair-share housing allocation to count the excess against subsequent fair-share requirements. Approved. • AB 2069 (Jones). Tightens no-net-loss restrictions to prevent the loss of potential housing sites in cases where a local government approves commercial development on a site zoned for mixed uses. The governor vetoed a similar bill in 2007. Approved. • AB 2280 (Saldaña). Clarifies recent changes to the density bonus law. Approved. • SB 668 (Torlakson). Would have exempted housing built on school property from seismic safety standards that apply to schools. Stalled in Assembly committee. • SB 900 (Corbett). Proposed repealing a Subdivision Map Act provision exempting from local government approval the conversion of a mobile home park to resident ownership. Stalled in Assembly committee. • SB 1065 (Correa). Allows cities and counties to use revenue bonds to refinance mortgages on owner-occupied homes for households earning up to 150% of median income. Approved. • SB 1299 (Migden). Would have permitted local governments to require that demolished rent-controlled units be replaced on the same parcel or elsewhere. Stalled in Assembly committee. Infrastructure • AB 842 (Jones). Provides preference for Proposition 1C funds for transit-oriented development to entities with local or regional plans that reduce the growth in vehicle miles traveled by 10%. Approved. • AB 1756 (Caballero). Proposed creating the Office of Local Public-Private Partnerships within the Business, Transportation and Housing Agency. Failed in Assembly committee. • AB 1850 (Devore). Proposed creating the Office of Public-Private Partnerships within the governor's office. Failed in Assembly committee. • AB 1968 (Jeffries). Would have authorized the governor to expedite construction of new highways and additional lanes in certain situations. Stalled in Assembly committee. • AB 2005 (Jeffries). Would have authorized the transfer of state parks to local government. Stalled in Assembly committee. • SB 863 (Yee). A last-minute bill that allocates $10 million from a Proposition 1C fund for parks that serve new housing to the City of Half Moon Bay to help settle a lawsuit won by an aggrieved developer. Could become part of state budget. Local and regional planning • AB 724 (Benoit). Would have increased local government's authority to regulate the siting and operation of "sober living homes." Stalled in Senate committee. • AB 2093 (Jones). Would have required general plans to contain policies to reduce greenhouse gas emissions. Failed in Senate committee. • AB 2182 (Caballero). Proposed a sustainable communities program within the Office of Planning and Research for the purpose of allocating $90 million in planning grants and incentives contained in Proposition 84. Gutted, amended and died. • AB 2219 (Parra). Would have modified the proof of water requirement for large subdivisions by permitting a city or county to count water demand management measures against a subdivision's water need. Dropped by author. • AB 2447 (Jones). Prohibits a county from approving a subdivision in a very high fire hazard severity zone or in an area where the state provides fire protection unless the county and responsible fire agency make specific findings about fire safety and emergency services. Approved. • AB 2921 (Laird). Amends the procedures for rescinding Williamson Act contracts and for addressing contract breaches. Approved. • SB 732 (Steinberg). Creates the Sustainable Communities Council to coordinate state programs and allocate Proposition 84 monies to fund sustainable community planning. • SB 1185 (Lowenthal). Extends the expiration date of tentative subdivision maps by 12 months. Signed by the governor. Redevelopment • AB 1088 (Carter). Would have ensured that an exemption from statutory timelines remains in place for redevelopment projects at the former Norton and George Air Force bases in San Bernardino County. Gutted and amended. • AB 1941 (Carter). Would have authorized a city, county, housing authority or redevelopment agency to convey surplus land to a developer for any use consistent with a redevelopment plan and a general plan. Stalled in Assembly committee. • AB 2097 (Coto). Allows use of housing set-aside funds in Santa Clara County for supportive services for extremely low-income households. Approved. • AB 2509 (Galgiani). Proposed a homeownership preservation mortgage guarantee fund in the state treasury. Stalled in Senate committee. • AB 2594 (Mullin). Authorizes redevelopment agencies to use non-housing tax increment revenue to refinance or assume subprime loans at risk of default. Agencies may also acquire vacant, foreclosed homes. Approved. • SB 1103 (Cedillo). Would have required a city, county or redevelopment agency to disclose specific information before approving an economic development incentive. Gutted and amended to address workers' compensation. • SB 1689 (Lowenthal). Requires the Department of Housing and Community Development to submit its redevelopment audits and investigations to the attorney general and state controller for potential enforcement action. Approved.

The Santa Clara Valley Transportation Authority (VTA) is making progress in its policy development, fiscal and project planning, and monitoring, but the agency could make more improvements, according to a detailed, 79-page report by the state auditor. The report follows a 2004 county grand jury report that was strongly critical of VTA for failing to make significant progress on an extension of BART to San Jose, and a 2007 VTA-hired consulting study that recommended an overhaul of the authority's organizational structure and practices because the authority had relied on overly optimistic revenue forecasts. The latest report, requested by three South Bay lawmakers, concluded, "The collection of VTA accomplishments and remaining deficiencies indicates an organization striving for a high standard but still requiring some changes to reach it." Specifically, the state auditor found that VTA — which provides transportation planning and transit services — has been without a comprehensive strategic plan "since at least 2006" and an interim plan "did not demonstrate one cohesive direction." The auditor also found that VTA has moved forward on projects without securing full capital and operational funding. In November, Santa Clara County voters are scheduled to consider a VTA-backed, one-eighth-cent sales tax to provide additional money for the long-planned BART extension from Fremont to San Jose. The report is available on the state auditor's website, www.bsa.ca.gov . The third and apparently final report by the state auditor on the Department of Corrections' plan to build a new death row at San Quentin concludes that the department may as well go ahead with the project — or not. State Auditor Elaine Howle in 2004 urged Corrections to investigate alternative sites for a new death row, a recommendation the agency ignored, and earlier this year she reported project construction costs had jumped from an originally estimated $220 million to $395 million (see CP&DR In Brief , July 2008 ; Public Development , April 2005 ). Observers expected Howle to recommend a different site for the project, but in the latest report she concluded that using one of three potential alternative sites in Folsom, Vacaville or San Diego would actually increase construction and 20-year operational costs by about $400 million because the project would be six years behind the San Quentin project's schedule. However, Howle also found the state could sell the San Quentin land for between $45 million and $118 million, and could save $93 million in operating costs if it delayed the San Quentin project by five years. The death row project is important in Marin County, where there is wide support for using the 40-acre site for a new ferry terminal. All three death row reports are available on the state auditor's website, www.bsa.ca.gov . What would be the largest ocean desalination plant in the United States cleared its final regulatory hurdle in late August, when the State Lands Commission approved Poseidon Resource's plan to co-lease the ocean intake and outfall at the Encina power plant at Agua Hedionda Lagoon in Carlsbad. The State Lands Commission's 3-0 vote followed by two weeks the Coastal Commission's 10-2 decision on final permit conditions for the desalination project. Poseidon plans to provide 50 million gallons of fresh water per day — equal to 56,000 acre-feet annually, or about 9% of San Diego County's current need — by desalinating water used for cooling at the power plant. Once the power plant completed a switch to an air-cooled system, Poseidon would take water directly from the sea. The cities of Carlsbad and Oceanside and seven special districts have signed up to be Poseidon customers. The Surfrider Foundation and the Planning and Conservation League have sued the Coastal Commission, arguing that the project's impacts have not been adequately addressed. Of specific concern are greenhouse gas emissions from the desalination plant. Poseidon argued, and the Coastal Commission agreed, that through offsets and reduced pumping to San Diego County by the Metropolitan Water District, the plant would be carbon-neutral. Environmentalists argue that the plant will not reduce Metropolitan's activities at all. Plans are pending for approximately 20 other desalination plants along the coast. A proposed suburban development in Hercules officially died only weeks after the City Council backed a dense, multi-use development concept elsewhere in town. The Muir Heritage Land Trust announced in August it had agreed to purchase 423 acres in Franklin Canyon, east of Interstate 80, for $1.8 million. Franklin Canyon was the site of numerous development proposals, including a 2002 plan for 577 single-family houses and a commercial center. The proposal was not popular and Hercules voters in November 2004 approved an initiative that zoned the land for 40-acre parcels. A developer-sponsored initiative for a different part of town will not even make it to the ballot because the City Council simply adopted it. The "Waterfront Now" initiative amends the general plan and rezones about 50 acres for 1,200 residential units, retail development, offices, "flex space" and 10 acres of parks. The development would be adjacent to a planned station for the Amtrak Capitol Corridor and a ferry to San Francisco. The city still must approve development details. Hercules has been pursuing new urbanist development on its waterfront for years (see CP&DR Local Watch , August 2001 ) but developers grew frustrated with the slow pace of progress. New fast-food restaurants have been banned for one year from a 32-square-mile portion of the City of Los Angeles south of downtown. The moratorium was backed by Councilwoman Jan Perry and public health advocates who argue that local residents lack healthy eating options. Perry noted that a larger percentage of the area's children are obese than in the city as a whole. The moratorium defines a fast-food restaurant as a business that sells food for consumption on and off the premises, has a limited menu, sells items prepared in advance or that may be heated quickly, dispenses food in disposable packaging, and provides no table service. McDonald's, Carl's Jr. and some mom-and-pop restaurant owners objected to the moratorium, saying they were being unfairly regulated. While the ban is in place, city officials hope to lure sit-down restaurants with healthier menus to the area. The city may extend the restriction for up to two years. The City of San Jose is considering a similar fast-food moratorium, although the measure faces opposition from Mayor Chuck Reed.

Sacramento city and county officials are congratulating themselves   – and getting congratulated by editorial writers and others – for cutting a deal to share sales tax revenues from auto dealers. But the deal's not the result of enlightened regional cooperation. It came about because both jurisdictions are threatened by auto malls elsewhere in the Sacramento region. On the surface, the deal is commendable: Although the county currently receives a lot more auto sales tax revenue than the city -- $7.7 million versus $3 million --  the two jurisdictions will share all future revenues 50-50. Isn't this exactly the kind of thing that everybody in California's been trying to get local governments to do for years? After all, it's illegal to subsidize the move of an auto dealership across jurisdictional lines ; and Sacramento's Darrell Steinberg – now the head of the Senate – caused a big ruckus when he was in the Assembly with his regional tax-sharing bill in 2002 . Well, sort of. The city and county of Sacramento are not joining forces because it's the right thing to do. They're joining forces because they think it will help them better compete with the powerful auto malls in Roseville and Folsom and the emerging auto center in ever-aggressive Elk Grove. The geography of auto sales in metro Sacramento now favors these outlying areas. Most of the older dealerships are located along Fulton Boulevard in Sacramento County, not far from Arden Fair Mall but far away from any freeway and increasingly hemmed in by traffic. The other auto centers have stronger locations, good marketing – and a lot of help from their cities. It's no coincidence that the Sacramento city-county deal was struck only a week after Roseville considered paying for half of a $6 million upgrade to the Roseville auto mal l. I learned a long time ago in planning school that politicians can work constructively together – but only when they think the alternative is worse. In the case of Sacramento's auto dealerships, we should congratulate the city and the county for doing the right thing – but we shouldn't forget that they're only doing it because the wrong thing isn't working anymore. -- Bill Fulton

Did you hear it at the very end of Barack Obama's acceptance speech Thursday night? "Cities to rebuild" was the phrase, and it marked the closest the Democratic nominee came to discussing urban planning and land use. I know, I know. I'm a land use nerd, and I'm well aware that the vast majority of land use decisions are made locally, not by the president. No one expects – or wants – the president to be a planner. But the federal government does have a big influence on what gets built where. Consider the Clean Water Act and the Endangered Species Act. Consider all the money the federal government spends on transportation, housing and flood control. Consider that the federal government owns half the land in California. Apparently all of this was not enough consideration to qualify for Barack Obama's acceptance speech. To be fair, no one expects John McCain to talk about inclusionary housing or mixed-use overlay zones, either. Obama gave himself an opening when he talked about energy. He mentioned tapping natural gas reserves, "clean coal" technology and nuclear power. (So much for the environmental movement.) He also mentioned more fuel-efficient cars and investing "$150 billion over the next decade in affordable, renewable sources of energy; wind power and solar power and the next generation of biofuels." But he didn't address climate change directly, nor did he talk about the role that development, redevelopment and new construction techniques could play in reducing energy usage and greenhouse gas emissions. Neither did the former community organizer in Chicago's South Side talk about specific inner-city needs. At the very end of his speech, Obama said, "America, we cannot turn back. Not with so much work to be done … Not with an economy to fix and cities to rebuild and farms to save …" And that was it. No real bone for us planning geeks to chew on. Ignored again. – Paul Shigley

A lawsuit challenging the City of Pleasanton's housing policies has been reinstated by the First District Court of Appeal after a trial court judge had ruled the lawsuit was filed too late. The unanimous three-judge appellate panel determined the statute of limitations for the lawsuit had not expired. The court concluded housing advocates had at least three years to sue the city. While the ruling pleased affordable housing advocates, it concerned officials in Pleasanton and elsewhere who said the court appeared to establish an open-ended statute of limitations. "We have some concern about the Court of Appeal's decision that a validly enacted growth management regulation can be subject to attack just because of the passage of time," Pleasanton City Attorney Michael Roush said. The city has asked the state Supreme Court to take the case because the Court of Appeal's decision, Roush contended, lets plaintiffs decide the deadline for filing lawsuits. Housing advocates contend they have legitimate complaints about Pleasanton's growth management ordinance, a voter-approved housing cap, and the way those laws restrict the provision of mandated affordable housing. They say litigation was a last resort after city officials stalled on implementing measures in the city's own housing element. "The housing cap makes it literally, mathematically impossible" for the city to meet its fair-share housing obligations, said Richard Marcantonio, who filed the suit for the group Urban Habitat Program. Pleasanton is a relatively wealthy, job-rich city of about 69,000 people along the 580 and 680 freeways in eastern Alameda County. The city's politics have tended toward slow-growth, as evidenced by the passage of city ordinances and ballot measures to restrict development (see CP&DR , December 2002 , April 2000 , July 1999 ). Specifically at issue here are a growth management ordinance and a voter-approved housing cap. First adopted in 1986 and amended in 1998, the growth management ordinance limits building permits to 750 per year. The Measure GG housing cap approved by voters in 1996 establishes 29,000 as the maximum number of housing units permitted in town. For the 1999-2006 regional housing needs allocation (RHNA) period, the Association of Bay Area Governments told Pleasanton it must plan for 729 units of very low-income housing, 455 low-income units, 1,239 moderate-income units and 2,636 above-moderate units. In 2003, about a year after the deadline, the city adopted a housing element that was supposed to reflect the RHNA figures. A key part of the element was a promise to rezone 30 to 40 acres of commercial and industrial land by June 2004 to permit high-density residential development. Without the rezoning, the city acknowledged it would lack land for 871 needed lower-income units. The state Department of Housing and Community Development (HCD) granted "conditional approval" of the housing element but revoked that approval in early 2005 because the city still had not rezoned land. With Pleasanton lacking a certified housing element, advocates began pressing the city about the provision of affordable housing. They noted that over the first five years of the 7 1/2-year planning period, only about one-third of the moderate and low income-units were built, and only a handful of very low-income units, all for senior citizens, were provided. City officials told the state and housing advocates that the rezoning had slipped because of an ongoing general plan update. To date, the city still has not designated the acreage promised for high-density housing. In October 2006, the group Urban Habitat Program sued the city, arguing that the housing element did not comply with the state housing element law, and that the growth management ordinance and housing cap were inconsistent with the city's general plan, state zoning and planning law, the housing element law, the least cost zoning law and the density bonus statute. Alameda County Superior Court Judge Winifred Smith agreed with Pleasanton that the statute of limitations had expired and that some of the claims were not ready for judicial review. On appeal, the First District, Division Two, overturned most of the lower court ruling, clearing the way for the litigation to resume in Superior Court. The First District focused on the statute of limitations. Both Urban Habitat and the city assumed that the deadline in Government Code § 65009, subdivision (d), applied, but they differed on what triggered the start of what is a 150-day timeline for notification and the filing of a lawsuit. However, the court ruled that statute did not apply because "the limitations periods set out in the statute are triggered by specific acts of local land use planning authorities." Urban Habitat's contentions regarding the growth management ordinance and the housing cap did not concern "a specific action taken by the city," the court determined. Because Urban Habitat is not suing over a specific action, the three-year statute of limitations in Code of Civil Procedure § 338 applies, the court held. In making this ruling, the court cited the state Supreme Court decision in Travis v. County of Santa Cruz , (2004) 33 Cal.4th 757 (see CP&DR Legal Digest , September 2004 ). In Travis , the court ruled that § 338 gave landowner three years to sue over a county ordinance that was allegedly in violation of a newer state law. The general conclusion in Travis , First District Justice Paul Haerle wrote, was this: "A challenge to a local government's decision based on events that occurred after that decision took place and, therefore could not have been brought during the statutory time limits, is not governed by § 65009." A staff report to the City Council in April 2006 conceded that city could not meet its RHNA numbers. From that date, Urban Habitat had three years to file suit, the court ruled. City Attorney Roush disagreed with the ruling. He said housing advocates were challenging the validity of an ordinance, and such a challenge must be filed shortly after the local law was approved. Otherwise, he said, cities lack certainty regarding their ordinances. Berkeley Deputy City Attorney Zack Cowan, who filed an amicus brief in the case for the League of California Cities, agreed with Roush. "The court's logic and the ruling could extend to anything. They aren't limiting it to housing elements," Cowan said. "Do we ever get to know what our rules are? People should get to raise questions about whether our rules are working. But that's what the political process is for." The court did toss out two claims regarding Pleasanton's housing element. But it reinstated claims regarding housing discrimination as being timely filed within two years after the occurrence of an allegedly discriminatory practice. The court rejected the city's argument that a portion of the lawsuit was not ready — or "ripe" — for judicial review because the city has never turned down a specific affordable housing project. Urban Habitat attorney Marcantonio said the city's argument incorrectly assumes only a housing developer may sue over the city's housing laws. Marcantonio contended that a court must address the conflict between Pleasanton's annual building permit limit and ultimate housing cap — which the city appears to be nearing — and the city's obligations under state law. He noted that in the current, 2007-2014 RHNA process, Pleasanton was directed to plan for 3,277 units, about three-fourths of which must be affordable. The Case: Urban Habitat Program v. City of Pleasanton , No. A118327, 08 C.D.O.S. 118327, 2008 DJDAR 11171. Filed June 20. Ordered published July 21, 2008. The Lawyers: For Urban Habitat: Richard Marcantonio, Public Advocates, Inc., (415) 431-7430. For the city: Michael Roush, city attorney, (925) 931-5015.