Proponents of placing land use ballot measures before voters in San Mateo and Riverside have lost separate appellate court rulings. In the San Mateo case, the First District Court of Appeal upheld the decision of election officials to reject certain petition signatures, a decision that blocked a referendum on a mixed-use development from reaching the ballot. In the Riverside case, the Fourth District Court of Appeal ruled that a City of Riverside lawsuit challenging the validity of a proposed ballot measure was not a Strategic Lawsuit Against Public Participation (SLAPP). In late 2005, the City of San Mateo approved specific plan amendments for the Bay Meadows race track site. As amended, the plan calls for replacing the horse track and parking lot with approximately 1,200 housing units, 1.25 million square feet of commercial space and 150,000 square feet of retail uses (see CP&DR Local Watch , March 2006). Project opponents led by the group Friends of Bay Meadows circulated petitions on a referendum to force a vote on the specific plan amendments. In December 2005, Friends submitted 5,708 signatures on referendum petitions. City Clerk Norma Gomez and San Mateo County Chief Election Officer Warren Slocum, however, rejected 1,131 of the signatures, leaving project opponents 84 short of the required 4,661 signatures to qualify for the ballot. Friends then went to court to challenge the rejection of about 100 signatures. Bay Meadows Land followed up with its own suit alleging the referendum petitions were invalid for technical reasons. A San Mateo County Superior Court judge ruled against Bay Meadows Land in its suit, but ruled for the city, Gomez and Slocum in the Friends' lawsuits. Everyone appealed what they didn't like about the lower court ruling, and the First District consolidated the proceedings. Friends argued that Gomez and Slocum erroneous invalidated five categories of signatures. Rather than plowing through all of the questioned signatures, however, the First District addressed only one type: 36 signatures for which someone other than the voter printed the voter's name and address below the signature. Such "assisted" signatures are permitted when the voter cannot personally print his or her name and address. Instead, someone else may print that information and a witness may sign to affirm that the voter did in fact sign the petition. Elections officials rejected these 36 signatures because there was no witness signature next to each voter signature. Friends argued that the signature of the petition circulator on the petition was adequate, but the court agreed with elections officials that individual witness signatures were required. "Having that information is patently relevant to the ability of election officers to verify the signature or mark of a voter who could not, for whatever reason, write out the information personally," Justice James Richman wrote for the unanimous three-judge panel. "No such witness signatures are present here � a defect, we hold, that is not cured by the circulator's verification of each section of the petition." "If the Legislature intended to permit a circulator to endorse all �assisted' signatures, it could readily have done so," Richman continued. "But it did not � . The Legislature drew a clear distinction among �circulators,' �voters,' and �persons.'" With those 36 signatures thrown out, there was no way Friends could reach the needed 4,661 valid signatures even if it won every other contested signature. Hence, the court said all other challenges, as well as the appeals of Gomez, Slocum and Bay Meadows Land, were moot and did not decide them. Bay Meadows Land Company has since downsized the project to about 1,060 residential units and 850,000 square feet total of commercial and retail space. Final entitlements are still in process. In Riverside, the city sued over a proposed initiative to limit the use of eminent domain. Referendum proponents contended the suit was a SLAPP. However, the Fourth District Court of Appeal ruled the city was challenging the initiative, not the citizens who presented the initiative. The decision has been decried by a number of groups, including American Civil Liberties Union, which has asked the state Supreme Court to reverse the Fourth District. The Planning and Conservation League has asked the state high court at least to de-publish the Fourth District ruling so it may not be cited as precedent. Meanwhile, the League of California Cities and the California State Association of Counties are hoping the Fourth District ruling stands. Only a few months after the U.S. Supreme Court's controversial ruling in Kelo v. City of New London , (2005) 545 U.S. 469, upholding the use of eminent domain for economic development purposes, Riverside resident Tom Stansbury and a group called Riversiders for Property Rights submitted to the city a proposed initiative for preparation of a ballot title and summary. The initiative sought to prohibit use of eminent domain for economic development purposes, and to prevent the transfer of property taken by eminent domain to a private party for 15 years. In November 2005, the city sued Stansbury and the Riversiders. The city argued that the initiative was invalid because eminent domain is a matter of statewide concern not subject to local initiative, and because the measure was inconsistent and self-contradictory. Stansbury and the group responded that the city's lawsuit was a SLAPP that attacked their First Amendment right to petition. In March of 2006, Riverside County Judge E. Michael Kaiser granted the initiative proponents' anti-SLAPP motion and later awarded Stansbury and the Riversiders $14,000 in attorney's fees and costs. The city appealed, and a unanimous three-judge panel of the Fourth District, Division Two, overturned Judge Kaiser. The Fourth District noted that the appeal was moot because initiative proponents had failed to get enough signatures to qualify the initiative for the ballot. Nevertheless, the court decided the appeal "because it is a matter of broad public interest which is likely to recur." The anti-SLAPP statute (Code of Civil Procedure � 425.16) "provides a mechanism for quickly identifying and eliminating civil actions filed for the purpose of chilling the exercise of free speech," according to the appellate court. Many early SLAPPs were filed by development proponents against people and groups who testified against a project. Pivotal to the Fourth District's decision was the state Supreme Court ruling in City of Cotati v. Cashman , (2002) 29 Cal. 4th 69 (see CP&DR Legal Digest , October 2002). In that dispute, a group of mobile home park owners had sued the city in federal court over the constitutionality of a rent stabilization ordinance. The city then filed a lawsuit in state court seeking a judicial declaration on the ordinance's validity. The park owners argued that the city's state court suit was a SLAPP, but the state Supreme Court disagreed. What was at issue was not the park owners' ability to seek legal redress, but the validity of the rent control ordinance, the court concluded. "The same rationale applies here," Justice Douglas Miller wrote for the Fourth District. " he city was simply asking for guidance as to the constitutionality of the proposed initiative. Indeed, the city did nothing to limit respondents' activities in connection with the initiative, nor did the city, by its action, otherwise impact respondents' First Amendment rights." The initiative proponents argued that only by challenging an initiative after voters pass it may the government contest a ballot measure's validity without interfering with the right to petition. But the Fourth District called this position "untenable" and cited City of San Diego v. Dunkl , (2001) 86 Cal.App.4th, 384, 389 (see CP&DR Legal Digest , April 2001): "It is well accepted that pre-election review of ballot measures is appropriate where the validity of a proposal is in serious question, and where the matter can be resolved as a matter of law before unnecessary expenditures of time and effort have been placed into a futile election campaign." The Fourth District reversed Judge Kaiser's SLAPP ruling and his award of attorney's fees and costs. First Case: Friends of Bay Meadows v. City of San Mateo , No. A115503, 07 C.D.O.S. 14249, 2007 DJDAR 18340. Filed December 12, 2007. The Lawyers: For Friends: Stuart Flashman, (510) 652-5373. For the city: Shawn Mason, city attorney, (650) 377-3305. For the county chief election officer: Brenda Carlson, county counsel's office, (650) 363-4250. Second Case: City of Riverside v. Stansbury , No. E040125, 07 C.D.O.S. 12246, 2007 DJDAR 15728. Filed October 12, 2007. The Lawyers: For the city: Kevin Randolph, Best, Best & Krieger, (951) 686-1450. For Stansbury: Richard Reed, (951) 779-04950.

Blackwater in Iraq means a swirl of controversy over private security forces guarding American diplomats – a job that in the past was done by uniformed U.S. military personnel. But there's a kind of a Blackwater phenomenon on the home front as well – the increasingly common practice of laying off all possible non-essential military-related functions on the private sector. Increasingly, in the case of military bases, this has a huge impact on planning because the Pentagon is now assuming that many basic needs of military personnel and their family will be provided by military base communities, not on the bases themselves. Perhaps the most dramatic example of the domestic Blackwater phenomenon is in housing. Remember when everybody lived on base? Today, the Pentagon's assumption is that 70% of military personnel and their families will live off-base in adjacent communities. Similarly, a whole variety of support services required to keep bases going – which in decades past would have been done by military personnel – are now being farmed out to local contractors. That's a huge impact – or a huge opportunity – depending on how you look at it. Last week, the Pentagon's Office of Economic Adjustment (OEA) put on a " growth summit" for communities around the country where the military is increasing its operations. Here in California, most communities affected by military bases have had to deal with shrinkage, not growth, as CP&DR readers have discovered over the years. (See, for example, our recent article on the City of Concord's attempt to block the Navy's transfer of a 5,200-acre closed base to a Virginia defense contractor. Yet the impact of increased privatization is likely to be similar whether the base is growing or shrinking. And at the OEA conference, I was struck by how familiar the issues are at military base communities in other parts of the county. Take, for example, Fort Drum , a major Army training base near where I grew up in Upstate New York. Although the surrounding region, anchored by the City of Watertown, is chronically depressed, Fort Drum is growing like mad. And even in low-cost Upstate New York, developers can't bring new housing onto the market at a price the military families can afford. The new houses typically cost around $220,000 . But low-paid military families can typically afford only $120,000 to $150,000. The solution? It's familiar if you're from California. A nonprofit entity that takes control of some land and uses every possible public funding source to create "affordable housing" for military families.  The flip side of the whole military base story is that, with the Pentagon's assistance, rapidly growing military bases are taking a page from their shrinking or closed counterparts when it comes to economic development. Virtually every one of the 20 or so growing base communities has created regional economic development entities – not unlike the ones created in California as a result of the base closures – trying to figure out how to identify and exploit economic "assets". So, these are the issues that we see in base communities: Affordable housing and economic development – not to mention workforce training (for military dependents) and open space (to create buffers around the bases). They're pretty familiar. The irony is that planning for military bases – whether expanding or shrinking – is not a whole lot different than planning for growth or expansion in any other community. And there are plenty of models in both military and non-military communities to draw from. - Bill Fulton

The City of Sacramento took a giant leap on Tuesday when the City Council approved Thomas Enterprises' plan to redevelop the rail yards just north of downtown. But there is no guarantee the direction that Sacramento leaped is forward. On the other hand, the project might be exactly what Sacramento needs to ditch its cow town image. For years, city officials have longed for redevelopment of the Union Pacific rail yards — the western terminus of the transcontinental railroad. And why not? Wedged between downtown and the American and Sacramento rivers, the site is potentially one of the great urban infill locations in the United States. With any such opportunity, progress is slow. Union Pacific has not always been a willing partner. Nearly four years ago, our Morris Newman wrote about a different developer's run at the site . In 2006, voters reject an ill-defined, sales-tax-funded basketball arena project on the site. In the meantime, the housing market shot to the sky and then fell to earth. So give the city and Georgia-based Thomas credit for plugging away. There is no doubt the plan is ambitious. It calls for up to 12,000 residential units, more than 1 million square feet of retail space, multiple office towers and hotels, a cultural district surrounding new railroad museums, waterfront development on the Sacramento River, and a multi-modal transit center. The vision is of urbanity. But there are reasons for concern: • At 240 acres, the site is enormous. Great cities typically are built one block at a time, not with sweeping strokes by a master developer. • The up-front infrastructure costs are equally enormous (at least $740 million) and funding is uncertain. The plan counts on $150 million from the state's 2006 housing bond, which appears overly optimistic. • Early phases of development will be heavily oriented toward retail. Thomas and the city like this approach because retail generates money for further development and for municipal coffers. However, the plan requires Thomas to develop only 1,000 housing units within the first 10 years. Without residents, the rail yard project is just another "lifestyle center," which is Thomas's specialty. • It appears the first thing to get built will be a Bass Pro Shops, a 200,000-square-foot big-box with a giant parking lot. So much for urbanity. • What about the existing downtown? Sacramento's downtown is OK, but it's not thriving. Redevelopment has faltered for decades, as evidenced by the endless struggle to remake the K Street mall. If capital starts flowing to the rail yards, who's going to be left to invest in downtown? Heck, who's going to be left to live, shop and eat in downtown when there's a spiffy new district just next door? Westfield, which owns the Downtown Plaza shopping mall, opposes the rail yard project for just this reason. • Which brings me back to size. Downtown and midtown Sacramento have long suffered from a lack of density. There simply are not enough people and stuff crammed together to create the sort of urban vitality found in San Francisco, Portland or that other big government town, Washington, D.C. An additional 240 acres of development may simply dilute things further. Still, there are also reasons for hope. As I said, this is potentially one of the great infill sites in the country, and infill is something that cities in the Central Valley need much more of. Sacramento is trying to think big and long-term, and, again, that approach is needed in the Central Valley. Not long ago, Sacramento would have been willing to convert the rail yards into a basketball arena with 8,000 parking spaces, a couple big-box power centers and a two-story office park. In other words, it could have become North Natomas without the housing. Instead, there's an opportunity to make a real city. - Paul Shigley

Driving through the Napa Valley last Saturday, the feeling crept over me once again. It's an uneasy, hemmed-in feeling that I often get while traversing the floor of this long, narrow, beautiful valley. Grapevines to the right. Grapevines to the left. Grapevines behind me. Grapevines in front of me. Okay, I admit it. I felt claustrophobic. And the reason I felt claustrophobic – other than an innate tendency in that direction – is because the Napa Valley, beautiful though it is, is what you might call a mono-landscape. It's natural, yes – but it's nature manipulated by human beings for a single economic purpose: the sale of wine. It's not a rural area. It's a factory and a theme park rolled into one. If this isn't always evident as you drive up Highway 29 or the Silverado Trail, it's pretty obvious when you enter a tasting room – and hear the constant ca-ching of the cash register. This kind of a factory and theme park, of course, requires land – land to grow the grapes and land to provide the backdrop. So it's not surprising that the voters of Napa County have locked in a requirement making it very difficult to change how agricultural land is used. In 1990, the voters adopted Measure J – the original "SOAR" measure, which requires voter approval when changing the land use designation on agricultural land. In 2008, Napa voters will decide whether to renew Measure J . In his brilliant book Nature's Metropolis , academic William Cronon came up with the term "second nature" to refer to landscapes like Napa Valley that appear natural but have, in fact, been altered by people for economic reasons. Because it appears natural, a farming or forestry area has sentimental appeal to people – residents and visitors alike – and this affects the politics of land use, which in turn affects the economics of the landscape being protected. This is perhaps most obviously true in the Napa Valley, which has probably the most valuable agricultural land in the world. But it's also true in a place like Ventura County, where I live, which has adopted Napa's Measure J approach countywide. Except in Ventura's case, the SOAR initiatives were adopted over the objections of the farmers, rather than with their consent. (Click here  for a brief history of SOAR-style urban growth boundaries.) In Ventura and elsewhere, residents voted to protect one economic landscape (agriculture) in order to prevent the creation of another economic landscape (urbanization) even though the people in the business they were protecting didn't want it. Since agriculture is an economic landscape, however, that means that the landscape's owners – farmers or growers – can still manipulate it even if they don't urbanize it. Since the passage of the SOAR initiatives, for example, we here in Ventura County have seen significant changes to our agricultural landscape – even though we haven't seen much urbanization. Our iconic orchards are being pulled out and replaced with row crops. And some of our row crops are being replaced with greenhouses. The reason is simple: Having come to terms with the idea that they may never develop their property, agricultural landowners are focusing instead on squeezing every dollar they can out of agriculture. The same is true in Napa – and the other emerging wine areas of the state – where there are constant battles over the proliferation of tasting rooms in supposedly rural areas, traffic on back roads, and the like. It's a reminder that the factory and the theme park don't always fit together well – at least not in the same mono-landscape.

As we at CP&DR know, the business of rating urban things is dangerous. Our recent rankings of the best and worst big city downtowns and medium-sized city downtowns didn't exactly thrill everyone. But people, myself included, love lists. You probably read or heard about the Brookings Institution's recently released report on the walkability of the country's largest metropolitan areas — "Footloose and Fancy Free: A Field Survey of Walkable Urban Places in the Top 30 U.S. Metropolitan Areas." But if you're truly interested in the subject, you might want to read the entire report for yourself. Two reasons for reading the report: First, the methodology is problematic, something which the study's author, Christopher Leinberger, acknowledges. I think the methodology makes the rankings nearly meaningless. Second, the report contains some observations and conclusions – which are not harmed by the methodology — that appear to hold true in California. If you read the news stories, you know that the Washington, D.C., area ranked first in walkability, followed by Boston and San Francisco. At first glance, that seemed like a reasonable top three. What caused me to pause in the first place was the ranking of Sacramento: 27th out of 30. Now, I've knocked Sacramento's alleged urbanism in the past.  But it's hard for me to believe that Sacramento is less walkable than the likes of Houston, Orlando and Phoenix. Sacramento's downtown and midtown are very walkable. Uses are mixed, many sidewalks are wide, motorists are accustomed to pedestrians, and the streetscape is generally pleasing. Older residential neighborhoods such as East Sacramento, Curtis Park and Land Park are full of people on foot. On the metropolitan periphery, much of the college town of Davis is easily walkable, as is the older core of Woodland. Ever tried to walk somewhere in Phoenix, a place defined by high-speed surface streets and low-density development? Good luck. Turns out the Brookings' report rankings are based on the number of walkable urban places per capita. For the purposes of the report, a walkable urban place must be "regional serving," rather than "local serving," a distinction that I think misses the point of walkability. The definition is thus: "Regional-serving places provide uses that have regional significance, such as employment, retail, medical, entertainment, cultural, higher-education, etc., and generally integrate residential as well." The report lists five types of regional walkable urban places: downtown, downtown adjacent, suburban town center, suburban redevelopment, and greenfield (such as mixed-use "lifestyle centers"). According to this criteria, the Sacramento metropolitan area's 2 million people are stuck with only one walkable place — downtown Sacramento. Phoenix's 4 million people can choose from Tempe and "24th and Camelback." Houston's 5.5 million people have the lively Montrose district and two suburban lifestyle centers. Those are the only sorts of places that rate in the study. Moreover, the study admittedly does not account for the size of these places. Thus, downtown San Francisco is given the same weight as the handful of walkable blocks in Emoryville (sic) and Menlo Park. In addition, the study counts only those urban places that are at or near "critical mass," meaning new development does not require significant public or private subsidies. I'm baffled here. Why consider staunchly slow-growth Menlo Park to be at critical mass, but not nearby Mountain View — where developers are building hundreds of market-rate housing units in the very fine downtown ? But enough of my griping. Leinberger does use the survey to make some interesting observations: • "Today, walkable urban places are just as likely to be found in the suburbs as in center cities." This is especially true in California, no matter how you define walkable urban place.  • "Rail transit seems to play a significant role in catalyzing walkable urban development." Just have a look around a BART, Metro or San Diego Trolley station. • "A tale of two kinds of metropolitan areas may be evolving: Those metros benefiting from the trend toward walkable urbanism, and those out of position." Those out of position, according to the report, are those not committed to providing good rail transit systems. The report names Cincinnati, Detroit and Kansas City. If this conclusion is true (and I have trouble arguing against it), places such as the Inland Empire and Orange County (both of which have very limited Metro service), Fresno, Bakersfield and Sonoma County are stuck with the car culture, for good or ill. - Paul Shigley

PLANNING MANAGERSSENIOR PLANNERSASSOCIATE PLANNERS Salary:   Planning Managers :   $73,961 - $100,951/Annually             Senior Planners :  $5,004 - $6,830/monthly             Associate Planners :  $4,643 - $6,338/Monthly Description :  Monterey County is one of the most beautiful places in the world.  Dramatic coastline with miles of beaches, spectacular mountain ranges and a rich agricultural history are enjoyed by its residents and visiting tourists. Monterey County is a multi-cultural and diverse society set in a picturesque coastal location.  Nobel-Prize winning Author John Steinbeck wrote about the people and the land of the Salinas Valley calling it "the valley of the world." The following positions await the right candidates: The Planning Manager reports to the Assistant Director of Planning and has overall responsibility for the work accomplished within an assigned functional team.  The Planning Manager guides the work of assigned staff to ensure the team works within established Department policies and in accordance with the Department's interpretation of applicable codes, ordinances, laws, regulations, guidelines, policies, and directives.  A Bachelor Degree in Planning, Geography or related field and three years of increasingly responsible experience in a supervisory or senior role will be necessary to succeed in this role.  A Masters Degree in Planning or Environmental Services is desired.  Final filing date is January 5, 2008. The Senior Planner is the advanced working level/lead worker in the professional planner series.  Under general direction the Senior Planner serves as the subject matter resource specialist to other planners in addition to performing the most complex and controversial projects.  Bachelors Degree in Planning or related discipline and approximately three years experience performing professional planning duties comparable to an Associate Planner position in Monterey County.  Final filing date:  Open Continuous The Associate Planner , under direction, performs a variety of complex land use planning work within a team of other professional planners.  The Associate Planner performs journey level professional planning work requiring a thorough knowledge of county planning policies, procedures, and regulations.  Bachelors Degree in Planning or closely related field and two years experience performing planning duties comparable to an Assistant Planner in Monterey County or four years experience comparable to an Assistant Planner in Monterey County.  Final filing date:  Open Continuous How to Apply: Detailed brochure for each position is available on the County's Website. Website:  www.co.monterey.ca.us/personnel Apply On-Line at:   https://jobs.co.monterey.ca.us/sigma/ (831) 755-5895 EOE Filing Date: Planning Manager  - Final filing date:  January 5, 2008Senior and Associate Planner:  Open Continuous

It was inevitable. California Planning & Development Report has been writing about trends in the field for more than two decades. The suburban development explosion of the 1980s, followed by the real estate market implosion of the 1990s. Ballot-box zoning. Redevelopment success, abuse and reform, followed by more redevelopment success, abuse and reform. Mello-Roos financing. Linkage fees. Economic development incentives. No new schools. The 55% threshold and new schools everywhere. New urbanism. The affordable housing crunch. Smart growth. More ballot-box zoning. Condo-mania. The return to downtown. Regional growth blueprints. And now: Green development. As I noted two months ago , and as Bill Fulton pointed out in November , green — or sustainable — development is just about all that people in the industry are talking about these days. Is this simply a flavor-of-the-month trend, or is it truly a long-term change in policy and practice? That's one of the questions we'll be addressing in a special January edition of CP&DR devoted to all things green in the world of planning and development. Contributing Editor John Krist will explain what the U.S. Green Building Council is, and what the terms LEED and LEED-ND really mean. We'll talk about the potential influence of the state's greenhouse gas law (AB 32) on land use planning. I'll have a look at local sustainable development policies. Bill Fulton will discuss the role of planners in the green building movement. Morris Newman will examine a purported green development. And we'll have plenty of other green development news. Our special green development issue is scheduled to go in the mail to subscribers just after the first of the year. Of course, subscribers will be able to read all of the stories on-line before the print edition arrives. We're still doing the heavy lifting for the edition. But if you'd like to add a little bit to our load, feel free to drop us a note or simply add a comment right here. - Paul Shigley

The Fifth District Court of Appeal has upheld the environmental impact report certified by Merced County for the University community plan. Adopted in December 2004, the plan lays out details for a proposed community that would support the University of California, Merced, campus. The plan envisions 11,600 residential units plus 2 million square feet of office and research space and retail space on 2,133 acres adjacent to the new UC campus. Environmental groups San Joaquin Raptor Rescue Center and Protect Our Water sued, arguing the environmental review documents and process were inadequate. Those groups and others have long contended that the UC campus, which opened in 2005, will exacerbate urban sprawl onto farmland instead of focusing development within the Merced city limits (see CP&DR Insight , October 2005; Q&A , January 2003; Public Development , April 2001). A Merced County Superior Court Judge ruled against the environmentalists and the Fifth District upheld that decision in an unpublished ruling. The court determined that the environmental groups ignored large amounts of evidence that conflicted with their arguments over the administrative record, project impacts and mitigations. The case is San Joaquin Raptor Rescue Center v. County of Merced , No. F051540. Shopping center giant General Growth Properties has been ordered to pay developer Rick Caruso's firm $89 million for interfering with lease negotiations for a Caruso project in Glendale. General Growth, which owns Glendale Galleria, has tried seemingly everything to halt Caruso's neighboring The Americana at Brand project, an open-air "lifestyle center" featuring 75 retail shops, an 18-screen cinema and 338 apartments. General Growth forced a referendum vote on the city's approval of the project, but voters narrowly backed the project in September 2004. General Growth also filed lawsuits over the project EIR and the city's disposition and development agreement with Caruso. General Growth lost that litigation in 2005 (see CP&DR Legal Digest , January 2006). In a suit against General Growth, Caruso argued that General Growth interfered with negotiations with Cheesecake Factory for leasing space. General Growth, according to Caruso, threatened to block the restaurant from General Growth malls if it leased space at The Americana at Brand. In November, a Los Angeles County Superior Court jury awarded Caruso Affiliated $74 million in compensatory damages and $15 million in punitive damages. An appeal by General Growth appears certain. The Americana at Brand is scheduled to open in 2008. A multiple-species habitat conservation plan for the Coachella Valley appears to be complete after 11 years of study, planning and negotiation. Eight cities, Riverside County and two water districts have adopted the plan, and state and federal agency approval is expected by March 2008, according to the Coachella Valley Association of Governments, which oversaw plan preparation. The species plan is one of the most ambitious ever, setting aside 240,000 acres of permanent open space in addition to 500,000 acres of existing public land for 27 threatened species of plants and animals. Although both environmentalists and building industry officials backed the plan, it got sidetracked when the City of Desert Hot Springs refused to go along (see CP&DR In Brief , July 2006; Local Watch , April 2006). Desert Hot Springs' stance caused CVAG to amend the plan, carve out that city, and start over on the approval process. In October, Landmark Properties, U.S., the developer of the proposed Palmwood golf course resort and housing project on 1,700 acres that Desert Hot Springs wants to annex, sued over the species plan. It designates the Palmwood site for conservation. A review by the state controller's office has found that school districts are underreporting pass-through payments they receive from redevelopment agencies The finding was one of several in a report released in November by state Controller John Chiang and prepared at the request of the Legislature. The controller's office also "found errors and inaccuracies in the data submitted by RDAs " in annual reports to the state, as well as irregular implementation at the county level of the 2004 "triple flip" and vehicle license fee swap. For redevelopment projects adopted or amended since 1994, state law requires redevelopment agencies to pass through to school districts a portion of the tax increment (the increase in property tax revenues). School districts reported to the Department of Education that they received $1.8 million in pass-through payments during the 2005-06 fiscal year. But redevelopment agencies reported to the state controller's office that they passed through $162 million that same year. The controller's office said it was unable to decide whose figures were correct but estimated the school district's underreporting cost the state general fund between $20 million and $30 million for the 2005-06 year alone. The controller's office promised to conduct additional reviews. The report, "Distribution and Reporting of Local Property Tax Revenue," is available on the state controller's office website at http://www.sco.ca.gov/aud/specreport/proptaxapportnov2007.pdf .

The development side has won one in the ongoing fight over water availability in the Santa Clarita Valley, California's hot-spot for litigation regarding water and planning. Let me explain: In October, the Second District Court of Appeal issued a ruling for Los Angeles County in a suit filed by Santa Clarita Organization for Planning the Environment (SCOPE) over Newhall Land and Farming Company's proposed 2,500-unit West Creek project. The environmental group contended the environmental impact report for the project was inadequate. The court ruled otherwise. As soon as we ran a story about the ruling, the Second District withdrew its decision and ordered a new hearing. "Ah-ha," said the environmentalists' lawyers. "The court recognizes it got it wrong." "Pssshhhht," said the developer's lawyer. "The only issue is semantics." (The entire saga and more links are in November's CP&DR Legal Digest .) Turns out the developer's lawyer was right. The new opinion issued on November 26 contains updated references to a state Supreme Court ruling in a water and planning case issued early this year, but the bottom line is the same: The EIR is adequate. I'm not about to pass judgment on the court's verdict. But there are some interesting factors that the court didn't get to consider. One of SCOPE's big concerns regarding West Creek and other projects in the Santa Clarita Valley is whether Castaic Lake Water Agency and developers should be able to rely on water from the State Water Project (SWP). The West Creek EIR assumes that 41,000 acre-feet of SWP water (enough for about 80,000 homes) will be available via a transfer from Kern County farmers. On the same day that the Second District issued its new ruling, the Department of Water Resources announced it expects to provide only 25% of SWP allocations next year because of ongoing dry conditions. In addition, there is great uncertainty regarding future deliveries of water from the Bay Delta because of the impacts of water diversions on rare fish species. At the same time, DWR is conducting hearings around the state on how the department operates the State Water Project. (Learn more on the DWR website: http://www.des.water.ca.gov/mitigation_restoration_branch/rpmi_section/projects/ ) Among the changes DWR is considering is a weakening of safeguards for urban areas during droughts. And, of course, the governor and state lawmakers continue to talk about putting some sort of water bond on the 2008 ballot. But how much money, and what it might provide, remain extremely uncertain. And that's the real bottom line with regard to all water and planning issues these days: Uncertainty. - Paul Shigley

With about half of the cities and counties in California facing a June 30, 2008, deadline to file updated housing elements, the often-controversial policy of inclusionary zoning is receiving renewed interest. Already, one-third of cities and counties have inclusionary zoning policies, and now other local governments — including Los Angeles, San Jose and Oakland — are considering the idea. However, inclusionary zoning does not fit neatly within housing elements, which are primarily intended to ensure that local jurisdictions have adequate sites to fulfill their fair shares of needed regional housing for people of all income levels. Plus, the Department of Housing and Community Development (HCD) has sent mostly negative signals on inclusionary housing for years. Inclusionary zoning proponents argue that the policy is a "no-brainer" for local governments. "We at NPH think inclusionary is a really important tool that local jurisdictions should look at when they update their housing elements," said Paul Peninger, the organization's policy director. Still, the building and real estate industries dislike inclusionary policies, which they say add to the cost of market-rate housing. Inclusionary zoning is a mandate that a certain amount — usually 10% to 15% — of new housing units are affordable to low- or moderate-income households. Most cities and counties permit developers to pay in-lieu fees rather than produce the units. Policies concerning where the affordable units may be located vary. Research on the effectiveness of inclusionary policies seems to reflect the attitudes of the researchers. The NPH released a report earlier this year that said inclusionary policies have been responsible for production of 30,000 affordable units statewide just since 1999. However, a study prepared by three San Jose State University economics professors for the Independent Institute found that cities with inclusionary zoning over the last 30 years have produced 10% fewer housing units and have 20% higher prices than cities without inclusionary policies. Academics and advocates have produced similar conflicting studies for years. What matters to most cities, though, is what HCD will accept when it certifies housing element updates. All cities and counties within the Southern California Association of Governments and Sacramento Area Council of Governments regions have a June 30, 2008, deadline to file updates. Every other jurisdiction outside of San Diego County has a June 30, 2009, deadline. For years, HCD has considered inclusionary zoning to be a constraint on potential housing development, and that position will not be any different during the upcoming rounds of housing element updates, said Cathy Creswell, HCD deputy director for housing. "It's a local regulatory standard that they need to evaluate for its effect on the supply of affordable housing," Creswell said. Still, she said, many jurisdictions with approved housing elements have inclusionary policies. The department reviews housing elements on a case-by-case basis, and if inclusionary policies are one part of an overall affordable housing strategy, HCD may approve the housing element, she said. "Communities throughout California have adopted inclusionary policies. Many of them have been parts of successful broader strategies," Creswell said. But the agency also sees cities that have produced only a handful of units through inclusionary policies or collected a small amount of in-lieu fees even after many years. In those instances, inclusionary zoning is simply one more growth restriction that HCD needs to evaluate closely, she said. There is no black-and-white test, despite what advocates on either side may contend, Creswell said. Bill Higgins, a lobbyist for the League of California Cities, said that HCD's lack of specific criteria for reviewing local affordable housing policies is problematic. "A lot of our members would say, ‘Where's the criteria? What's a good inclusionary program and what's a bad one?'" Higgins said. Higgins contended that inclusionary zoning provides essentially the same approach as density bonuses in that both policies ensure that a portion of new housing is affordable. The difference is that density bonuses are voluntary — builders can build more units if they are willing to provide a certain percentage of units as affordable — while inclusionary is mandatory. That's a huge difference to the building and real estate industry. In 2005, the Home Builders Association of Northern California reached an agreement with NPH and cooperatively released a report, "On Common Ground: Joint Principles on Inclusionary Housing Policies." The document emphasized flexibility in how builders satisfy inclusionary requirements, including permitting off-site construction of affordable units, donations of land, and pooling or transferring credits for production of affordable units (see CP&DR , September 2005). The report also urged local governments to waive or reduce processing and impact fees for inclusionary units and contribute more money to affordable housing development. Officials at HCD embraced the report and continue to point local planners to the document's recommendations. In San Diego County, where the San Diego Association of Governments (SANDAG) helps cities and the county self-certify their housing elements, 11 jurisdictions have inclusionary policies, according to Susan Baldwin, SANDAG senior planner. None of the local governments added inclusionary policies as part of the recently concluded housing element update, she pointed out. "The fair-share numbers are really what they have to plan for. They really have to plan for sites," Baldwin emphasized. "But they also have to have programs to build the units on the sites that are identified." And this, argue proponents, is where inclusionary policies fit into housing elements. Although the core of housing elements is site identification, said Peninger, local governments must have policies to help ensure that affordable housing actually gets built on the sites. Among those policies is inclusionary zoning, he said. Essentially, HCD uses density as a proxy for affordability, Higgins observed. The department considers high-density units to be affordable. But there is no reason to assume that high-density units in desirable locations — such as waterfront condos or high-rise units in a hopping downtown — will be available to anyone but the wealthiest buyers, he said. Hence, the need for affordable housing policies and programs, of which inclusionary is one, he said. Peninger said HCD's approach discourages cities and counties from adopting inclusionary policies. Instead of considering inclusionary zoning to be a constraint, he said, HCD should work with cities and nonprofit builders to encourage adoption of inclusionary policies that comply with the "Joint Principles" report. What cities ought not do is confuse adoption of inclusionary zoning with preparation of a housing element update, said Peninger, a warning that HCD would no doubt agree with. The City of San Jose — which has produced more affordable units than any jurisdiction in the state in recent years, largely through redevelopment — is scheduled to consider inclusionary zoning in December. The San Jose Chamber of Commerce as well as the local building industry association and Board of Realtors have all lined up in opposition, arguing that the policy would discourage housing development. Contacts: Cathy Creswell, Department of Housing and Community Development, (916) 323-3177. Paul Peninger, Nonprofit Housing Association of Northern California, (415) 989-8160. Bill Higgins, League of California Cities, (916) 658-8250. Susan Baldwin, San Diego Association of Governments, (619) 699-1900. HCD housing element website: http://www.hcd.ca.gov/hpd/hrc/plan/he/ Independent Institute report on housing mandates: http://www.independent.org/publications/policy_reports/detail.asp?type=full&id=27

San Diego County's adult business ordinance has mostly survived two federal court challenges. In separate rulings, the Ninth U.S. Circuit Court of Appeals held that the ordinance's zoning provisions pass constitutional muster. The county's permitting scheme, however, did suffer one significant setback. The court found the ordinance's 130- to 140-day time limit for the county to decide on an adult business permit application was "unreasonably long." Because of this, the court severed the permitting requirement from the remainder of the ordinance. In 2002, the county adopted a comprehensive zoning ordinance to govern adult entertainment establishments in unincorporated areas. The ordinance restricted the businesses to designated industrial zones, required them to close between 2 a.m. and 6 a.m., and imposed certain operating conditions. The owners of the two adult businesses in unincorporated San Diego County — Déjà Vu and Fantasyland Video — filed separate lawsuits in federal court questioning the constitutionality of numerous aspects of the ordinance. District Court Judge Larry Burns ruled against Fantasyland entirely, and against Déjà Vu except on the issue of the permit review timeline. A three-judge panel of the Ninth Circuit then heard appeals in the separate lawsuits. Before deciding, the Ninth Circuit asked the California Supreme Court whether a court should review a challenge made under the state constitution's liberty of speech clause based on strict scrutiny, intermediate scrutiny or some other standard. The question arose because of a 1980 state Supreme Court decision ( People v. Glaze , 614 P.2d 291) that struck down an hours-of-operation restriction because the restriction was not the least restrictive means of accomplishing the government's purpose. The "least restrictive means" test exceeds the intermediate scrutiny standard and can impose a difficult hurdle for local government. The state Supreme Court has since applied intermediate scrutiny to adult business zoning ordinances, but has never specifically disavowed Glaze . In late September, the state Supreme Court responded with this order: "California law is clear that content-neutral time, place, and manner regulations affecting protected speech are subject to an intermediate standard of scrutiny." The U.S. Supreme Court's cornerstone case on adult business regulation, City of Renton v. Playtime Theaters, Inc. , 475 U.S. 41 (1986), laid out the intermediate scrutiny test this way: The ordinance must serve a substantial government interest, be narrowly tailored to serve that interest and allow for reasonable alternative avenues of communication. Also pivotal in the litigation at hand was the Ninth Circuit's interpretation of Supreme Court Justice Anthony Kennedy's concurring opinion in City of Los Angeles v. Alameda Books, Inc. , 535 U.S. 425, 444-53. Because Kennedy was the deciding vote in a 5-4 decision, his concurrence is considered to be the controlling opinion. Kennedy wrote that the government must have some basis to conclude that its regulation will leave "the quantity and accessibility of speech substantially intact" (see CP&DR Legal Digest , June 2002). Of course, adult business regulations must focus on the "secondary effects" of such businesses because regulating adult businesses merely for the sake of regulation is unconstitutional under the First Amendment. The county's stated rationale for its 2002 ordinance was to reduce crime, disorderly conduct, blight, late-night noise and traffic, property value depreciation and unsanitary behavior. In the Déjà Vu case, the business owner argued that the industrial zoning requirement was unconstitutional, that the available alternative sites were inadequate, and that the permitting provisions were unreasonable. The court disagreed, finding that under the intermediate scrutiny standard and Kennedy's Alameda Books concurrence, the ordinance was valid. "The county's legislative record cites to a number of sources — studies and reports from other jurisdictions, relevant judicial decisions, and public testimony — to assert a connection between the adult establishments and negative secondary effects. A municipality may rely on these types of sources," Judge Barry Silverman wrote for the Ninth Circuit. "The county could then reasonably infer that isolating of adult businesses to industrial zones would have the purpose and effect of reducing crime, disorderly conduct, and property depreciation, as such zones are located away from residential areas and have little other commercial appeal at night." "We reject Déjà Vu's contention that Alameda Books imposed a heightened evidentiary burden on the county to show ‘how speech would fare' under the ordinance," Silverman continued. "So long as there are a sufficient number of suitable relocation sites, the county could reasonably assume that, given the draw of pornographic and sexually explicit speech, willing patrons would not be measurably discouraged by the inconvenience of having to travel to an industrial zone." As for alternative locations, the Ninth Circuit noted that Judge Burns determined there were 68 sites, on which 8 to 10 adult businesses could operate simultaneously. The Ninth Circuit upheld that determination and noted that locations in incorporated areas were also available. The court then turned to the question of time restraints. The ordinance required anyone seeking to operate, enlarge or transfer control of an adult establishment to get a permit, and gave the county 130 to 140 days to decide on the request. The lower court rejected this period as unreasonably long and severed the time limits provision. This had the effect of imposing no time limits at all on the county, which is "patently unconstitutional," the Ninth Circuit noted. So, while upholding the lower court's ruling, the Ninth Circuit threw out the entire permit requirement. "Owners of adult establishments would have to comply with the substantive provisions of the ordinance, but would not need to secure a permit prior to operation unless and until the time limit defect is corrected," Silverman wrote. Much of the Fantasyland opinion addressed the ordinance's prohibition on doors for peep show booths, which the court ruled constitutional. As for Fantasyland's challenge to the hours-of-operation limit, the court ruled that under the intermediate scrutiny test, the business had to "cast direct doubt" on the county's secondary-effects rationale. Fantasyland failed to do so, the court ruled. The expert for Fantasyland and Déjà Vu, Daniel Linz, a professor at University of California, Santa Barbara, rebutted the county's evidence regarding late-night crime and property values but did not address late-night noise and traffic. "Fantasyland's failure to address these considerations is fatal under the second step of the Renton intermediate scrutiny analysis," Silverman wrote. The court made an identical ruling in the Déjà Vu case. The Cases: Tollis Inc. v. County of San Diego , No. 05-56300, 07 C.D.O.S. 12064, 2007 DJDAR 15555. Filed October 10, 2007. Fantasyland Video, Inc. v. County of San Diego , No. 05-56026, 07 C.D.O.S. 12216, 2007 DJDAR 15758. Filed October 15, 2007. The Lawyers: For Tollis (Déjà Vu) and Fantasyland: Clyde DeWitt, Weston, Garrou, DeWitt & Walters, (310) 442-0072. For the county: Thomas Bunton, county counsel's office, (619) 531-4860.

Call it the Year of the Election. Every time you turn around during 2008, Californians are going to be voting on something. February. June. November. And, on the local level, probably some dates in between. Property rights advocates will try to make it the year of eminent domain. Environmentalists will try to make it the year of climate change. On the local level, various citizen groups will try to make it the year they assert themselves – as in Stanislaus County, where a February initiative would subject agricultural zone changes to a public vote. Cast against the backdrop of a contentious presidential election, a real estate slump, and possibly a recession, it's hard to discern what the impact on the California planning and development scene will be when the dust clears. But it is entirely possible that, electorally, we'll see two Californias this year – the liberal one, which will emerge in February and November, and the libertarian one, which will become evident in June. That's because, at the state level, there will be not two elections but three – the presidential primary in February, the regular primary in June, and the presidential election in November. The February and November elections are likely to attract high voter turnout. Both parties will probably still be duking it out for the presidential nomination in February – that was the whole point of moving the primary up – and the general presidential election always draws a huge turnout. That's good news for the liberals, especially the environmentalists, who want to focus on climate change as a major issue in the presidential campaign. But don't overlook the regular June primary. Without the presidential headliners, it will almost certainly feature a much lower turnout. And that's good news for the anti-government types at the Howard Jarvis Taxpayers Association, who are trying to get their eminent domain initiative – call it "Son of Proposition 90" – on the ballot at that time (see CP&DR Redevelopment Watch , September 2007). Little more than a year ago, California voters barely rejected Proposition 90, a wide-ranging initiative that would have reined in eminent domain, and would have redefined the idea of a "taking of property" to include a lot of garden-variety land use regulation (see CP&DR Insight , December 2006). The initiative got 47.5% of the vote even though the proponents didn't really run a campaign. Proposition 90 came so close that everybody recognized an initiative restricting eminent domain was there for the taking, emboldening the taxpayer groups and scaring the local governments. The Jarvis group and the local government associations danced together for a while this year, trying to write a measure they could agree on. Eventually, however, the Jarvis people went their own way. But they did so with an initiative that is, in many ways, much less sweeping than Proposition 90. The proposed measure clamps down on eminent domain for economic development purposes, as Proposition 90 did, but it doesn't extend its reach to land use regulation in the same way. The measure does, however, effectively place a ban on rent control – a provision that has already drawn financial support from landlords but which will likely generate political heat from big-city activists and mobile home residents. The Jarvis group also got the California Farm Bureau Federation on board by advertising the idea that the initiative minimizes the risk of eminent domain being used on family farms to be used for natural resource protection, even though that virtually never happens. Local government organizations are gathering signatures for a more modest measure that would prohibit the use of eminent domain to obtain owner-occupied houses for economic development purposes. The locals are also arguing that the Jarvis initiative would threaten virtually all future water projects because of the way eminent domain would be restricted. But the key to this election may not be the ballot measures themselves. The key may be the timing of the election. The Jarvis initiative would obviously do much better during the June low-turnout election, when conservative voters are likely to have more sway. The local government alternative would probably do better in November, when there will be a higher and presumably more liberal turnout, In 2004, 57% of eligible voters turned out in November, compared with only 30% for the March primary. The June turnout this year will likely be comparable to the March turnout last time. Meanwhile, environmentalists are likely to keep pounding away at climate change in the presidential election – which could affect the way the state implements AB 32, the greenhouse-gas emissions reduction law. An environmentalist-backed implementation bill affecting land use – SB 375 (Steinberg) – almost passed the Legislature last August. If climate change maintains a high profile because of the presidential election, then the Legislature may be forced politically to adopt an aggressive implementation bill. With the entire Assembly and half the Senate up for grabs on the presidential ballot, Democrats in particular may have to tow the environmentalist line. Meanwhile, the local ballots will be a mixed bag for land use as always. The biggest issue on any local ballot in February will be a SOAR-type initiative in Stanislaus County, along with a countermeasure placed on the ballot by the Board of Supervisors. Measure E, as the citizen initiative is known, mimics the famous SOAR initiative in Ventura County by requiring voter approval for any rezoning of land in the unincorporated area from agriculture or open space to residential. The county alternative will create a general plan review committee to review and shore up agricultural land policies among other things. SOAR-type initiatives have not traveled well in the past. Though vastly popular in Ventura County (the county measure and most of its city counterparts received 65-70% of the vote when they were on the ballot), they have been defeated in similar counties such as Sonoma and San Luis Obispo (see CP&DR Insight , December 2000). Stanislaus is more politically conservative than any of these other counties – though, like Ventura, it has a long history of restraining urban development in order to preserve farmland. A high February turnout might help the initiative. Meanwhile, liberal Napa County will likely vote on two significant land use initiatives in June, including one that will extend Measure J, the 1990 measure that paved the way for SOAR in the first place. Like the SOAR measures and Stanislaus County's proposed Measure E, Measure J requires a countywide vote to rezone agricultural property in the unincorporated area for urban uses. It was the 1995 California Supreme Court ruling in De Vita v. County of Napa , which upheld Measure J, that opened the door to the SOAR initiatives in Ventura County and elsewhere. Measure J currently sunsets in 2020, but the June initiative would extend it for 50 years. So there you have it: prohibitions on eminent domain and aggressive regulation on land use, all in the same year. It is an entirely plausible outcome in the Year of Election.