A county airport land use commission may not exempt a specific plan adopted by a city or county from compatibility standards for development in the vicinity of an airport, according to a state attorney general’s opinion. The opinion written by Deputy Attorney General Daniel Stone was prepared at the request of Riverside County Counsel William Katzenstein. During the 1980s and early 1990s, Riverside County and some cities adopted a host of specific plans for territory around airports in French Valley, Hemet and Corona, explained Deputy County Counsel B.T. Miller, who advises the airport commission. When state legislation required county commissions to adopt compatibility standards for land use and development intensity in the vicinity of airports, the Riverside County commission approved compatibility plans that exempted the existing specific plans. As development proposals were submitted in compliance with those specific plans, the proposals were not held to the compatibility standards, Miller said. In time, conflicts began to arise, especially around the airport in French Valley, an unincorporated community east of Murrieta that is the location of large-scale residential development plans. Also, membership of the commission turned over, and the county began providing more professional staff assistance. The new people did not want to continue the practice of exempting development from the compatibility standards, and the new folks wanted to prepare new standards that eliminated the exemptions. Miller said that the county counsel’s office had begun advising the commission that the exemptions were not legal. To firm up its position, the county sought the attorney general’s advice. “In some ways, it’s an obvious opinion,” Miller said of the attorney general’s opinion. “But sometimes it’s important to state the obvious.” The state law at issue is the State Aeronautics Act (Public Utilities Code §§ 21001-21707). The act requires a county airport commission to formulate an airport land use compatibility plan that addresses land use issues and minimizes the public’s exposure to noise and safety hazards. According to the attorney general’s opinion, § 21676 “provides a detailed procedure for resolving conflicts between a specific plan … and an airport land use compatibility plan.” If the commission finds an inconsistency, it must notify the city or county that adopted the specific plan. The city or county may then overrule the airport commission, but only with a two-thirds vote and only if the city or county can make findings that the specific plan is consistent with the state law’s goal of minimizing the public’s exposure to noise and safety hazards. If the city or county does not either follow this procedure or amend its land use policies in question, an airport commission may require the city or county to submit “all subsequent actions, regulations, and permits to the commission for review,” according to the attorney general’s opinion, which cites § 21676.5, subdivision (a). “In light of the elaborate procedures set forth in § 21676 and § 21676.5 for identifying and resolving inconsistencies between a specific plan and an airport land use compatibility plan, it is apparent that the Legislature did not intend or authorize a commission to grant ‘exemptions’ for a specific plan with less stringent standards than a compatibility plan,” Deputy Attorney General Stone wrote. “Instead, the act contemplates that, in the event of such a conflict, certain steps will be taken to achieve the act’s overall objectives, including possible review by the commission of ‘all subsequent actions’ taken by the city or county.” As for Riverside County specifically, Stone wrote, “Not only would the exemption in question be inconsistent with the act’s provisions and without authorization, it would be in conflict with the act’s purposes.” Since the attorney general issued the opinion, the Los Angeles County Airport Land Use Commission has risen from obscurity to question Mayor James Hahn’s plan for Los Angeles International Airport, suggesting that Hahn’s plan would expose the public to excessive noise and safety risks. The attorney general’s opinion is No. 03-805 and was filed July 22, 2004. It may be found at 04 C.D.O.S. 6645 or 2004 DJDAR 9081.

The 2003-04 legislative session has closed with the passage of dozens of mostly minor land use bills, and the failure of dozens of others. Still, lawmakers did pass a bipartisan measure creating a new Sierra Nevada Conservancy, and they continued to hammer on local governments about affordable housing development. The Legislature approved a number of brownfields, infill and housing bills that could fall under the definition of “smart growth.” Lawmakers also moved to protect natural resources, ranging from oak woodlands to Sacramento-San Joaquin Delta farmland to the ocean. Money measures went nowhere during the two-year session. Proposed state bonds for items such as transportation and other infrastructure barely received a hearing. Bills that sought to lower the voter threshold for approval of local tax increases found no favor. And, with a few exceptions, bills and constitutional amendments that sought to reform the state-local fiscal relationship also died with no fanfare during a legislative session marked by huge state budget deficits. Broad policy initiatives in any area of land use were absent again during this two-year session, in part because the Schwarzenegger administration never asserted itself on the subject. Many people expect that to change next year. Creation of the Sierra Nevada Conservancy might be — literally — the most far-reaching bill passed this year, as the jurisdiction of the proposed Conservancy would stretch from the foothills outside Bakersfield to the Oregon border. Under AB 2600, the Conservancy would be something of a conduit for state and federal funding to the region. In fact, the state budget for 2004-05 already contains $4 million for the Conservancy. The bill was the culmination of at least five years of background work by the Sierra Business Council and other advocates (see , May 2004). The bill is remarkable in part because it was co-authored by Democratic Assembly John Laird of Santa Cruz and Republican Assemblyman Tim Leslie, who represents a largely rural and conservative district in the mountains. Resources Agency Secretary Mike Chrisman has endorsed AB 2600, and the governor’s signature is expected. The Conservancy itself will not be able to acquire land, but it may acquire easements and it may provide money to nonprofit entities or local governments for the purpose of buying land. Republican Leslie demanded the provision prohibiting land acquisition, which would make this Conservancy different from its eight counterparts statewide. Environmentalists were willing to concede that in exchange for including more territory in the Conservancy’s jurisdiction. The agency’s territory would encompass everything related to the Sierra, from blue oak woodlands on the edge of the Central Valley to the dusty valleys on the east side of the mountain range, as well as all of the major watersheds. “Watersheds are the most basic ecological unit around which to organize services,” said Elizabeth Martin, a lobbyist for a foundation called the Sierra Fund, who noted that county lines often run down the middle of rivers. “The larger unit of management reflects how the Sierra is plumbed and how wildlife moves around.” Property rights advocates and counties themselves are mixed on the idea. They complain that a Conservancy would be another layer of government and would tie up more land in a region that is already mostly in the hands of the government. But Martin and other backers contend that design of the proposed Conservancy places great emphasis on local needs and desires. Six county supervisors will sit on the conservancy’s 13-member board, and the fact that the agency will not be able to buy land means that it must work with local governments and local land trusts, Martin said. There is no regulatory scheme, she pointed out. A different proposal to encourage natural resources conservation — this one for the Sacramento-San Joaquin Delta — was not approved this year, partly because of its proposed regulatory scheme. Instead, lawmakers approved a bill to modestly beef up the role of the existing Delta Protection Commission (AB 2476-Wolk). They also approved a new program (SB 86-Machado) that provides financial incentives to Delta landowners who manage their land to protect natural and agricultural resources. Senate Bill 86 was a reaction to an earlier version of AB 2476, which could have given the Delta Protection Commission a much greater role in fringe urbanization issues and farmland conversion (see , June 2004). If Schwarzenegger signs SB 86, the Coastal Conservancy would run the new program. “It allows the Delta to access the Conservancy’s expertise without having to invent a new agency,” said William Geyer, a lobbyist for Delta landowners. They backed the concept because it could provide annual payments to them based on their management practices, rather than a one-time payment for an agricultural or open space easement. In the area of housing, the two highest-profile bills were SB 1818 (Hollingsworth) and AB 2702 (Steinberg). Affordable housing advocates, the California Association of Realtors and some development interests backed both bills, while the League of California Cities, the California State Association of Counties (CSAC) and the California Chapter of the American Planning Association opposed both measures. Under the existing law, a city or county must provide a 25% density bonus to a developer who provides a certain percentage of units for low- or moderate-income residents or seniors. Senate Bill 1818 has three major provisions: It gives builders a greater density bonus for donating land to a nonprofit entity or local government for the construction of affordable housing; it sets a range of bonuses from 20% to 35% depending on the amount and type of affordable or senior units provided; and it lets a developer select three incentives, such as relaxed parking standards or smaller setbacks. Assembly Bill 2702 builds on a law approved two years ago that requires local governments to handle applications for second dwelling units ministerially. The new bill would prohibit cities and counties from establishing perpetual occupancy rules, mandating units smaller than 550 square feet, requiring covered parking or establishing minimum lot sizes greater than double the size of the primary residence. Affordable housing lobbyist Marc Brown said the negative reaction of some cities to the 2002 legislation was behind the latest bill. “If these cities had not gone off the deep end and tried to undercut all of this stuff, we would not have been back with new legislation this year,” Brown said. He said that, under AB 2702, cities and counties still have the authority ban second units outright, limit them to certain areas and restrict their numbers geographically. But local government representatives fought both bills as intrusions into local rule. “They weren’t able to substantiate the problems that they were using as a basis for AB 2702,” said CSAC Lobbyist DeAnn Baker, who complained that the bill invites rental duplexes into single-family neighborhoods. “There are unintended consequences when you get that prescriptive in state law. There could be a lot of backlash to second units.” In a letter to the Sacramento Bee, California Association of Realtors President Ann Pettijohn charged local governments with “engaging in scare tactics.” That prompted League of California Cities Lobbyist Daniel Carrigg to respond: “Rather than seeking changes to local ordinances in city halls and chambers of county supervisors — where the affected residents can engage in the debate — the Realtors are attempting to use the Legislature to mandate their views statewide.” Interestingly, Republicans played a major role in both affordable housing bills. Senate Bill 1818 was carried by Republican Sen. Dennis Hollingsworth of Murrieta, and Republicans provided the necessary votes for approval of AB 2702. The interest among legislative Republicans in housing, combined with the Republican Schwarzenegger administration’s known support for housing development, could provide affordable housing advocates with some important allies during the next legislative session, which begins in December.

Is a proposed high-density project in Redwood City an example of smart growth, or a gridlock-inducing suburban nightmare? That is the question voters will answer in November, when they vote on whether to allow 17 high-rise towers to be built along the city’s San Francisco Bay waterfront. The upward thrust of the Marina Shores Village — the towers would range between 15 and 21 stories high, with 2.8 million square feet of residential space, along with offices and retail — is unprecedented in the suburban Bay Area. In the region, only San Francisco has more high-rise buildings. But without San Francisco’s transit infrastructure, the $1 billion project has opponents who predict it will lead to traffic gridlock on Highway 101, which is already jammed with commute traffic. “Smart growth” often means high density development built around mass transit, but in this case the mass transit — in the form of the Caltrain commuter train — is across the freeway and its crowded intersections from the development site. Marina Shores Village sits next to the Bayshore Freeway and along Redwood Creek, which turns into San Francisco Bay. The project would be carved out of two boat marinas.. Developer Glenborough-Pauls LLC plans to run six daily shuttle buses from the village to the Redwood City Caltrain station. But Redwood City environmentalist Ralph Nobles thinks the shuttles are not enough to reduce the congestion. “What this means is you’ll have someone to talk to while you’re stuck in traffic,” Nobles said. Paul Powers, president of Pauls Corporation, which is a partner with the Denver-based Glenborough REIT in building Marina Shores Village, said the project will provide housing to local workers who want to live close to their jobs. He estimated the approximately 3,900 residents of Marina Shores will live within three miles of 30,000 to 50,000 jobs. The largest employer in the city is Oracle, which has between 6,000 and 7,000 workers at its headquarters near the Marina Shores Village project site. Powers also expects local residents to move to the new development as they downsize from houses. “We will take cars off of 101,” Powers said. A group called People for Housing Not High-Rises was able to gather more than 3,600 signatures to force a referendum on the project one month after the Redwood City council approved the project and raised the allowable height limits from 75 feet to 240 feet. The project is unusually large for suburban San Mateo County, which has little easily developable land remaining. A total of 1,930 condominiums and townhomes are proposed to be built in phases over a 20-year period at Marina Shores Village. Powers said the project has “tremendous support from people who want to do away with urban sprawl.” Among those endorsing the project is the Silicon Valley Manufacturing Group (SVMG), an influential business group that, among other things, lobbies for housing development in the area. “Traffic is always an issue in any kind of infill proposal,” said Shiloh Ballard, SVMG’s director of housing and community development. “If you don’t put the homes here, folks are going to commute from somewhere else.” Water, however, could be a problem. Currently, Redwood City uses more water than it is allocated by the Hetch Hetchy project, and there is no guarantee of water for Marina Shores Village. With each phase of the project, a consultant funded by the developer but working for the city would study the water situation and determine if supplies are adequate for construction to go forward, according to Tom Passinisi, the city’s acting planning director. The city has no new water sources, although the developer could purchase someone else’s water supply, Passinisi said. Developer Powers noted that the city plans to begin recycling wastewater to make up for the shortfall. City planner Mike Church said earlier plans for the project called for more towers at a lower height. But Powers said lowering the towers further would not leave enough land for all the improvements planned for the area. The development is expected to receive approval from the Bay Conservation and Development Commission, which has jurisdiction over development on the bay and 100 feet around it, according to Will Travis, the commission’s executive director. “Generally, high rise development along the waterfront is not something we’re opposed to if it has adequate public access,” he said. Marina Shores is proposed to have 6.8 acres of new parks, as well as marinas and access to open space. The project also would have public walkways on all areas along the water, and the developers plan to build trails and a pedestrian/bicyclist undercrossing beneath Highway 101. Altogether, the developers have promised 97 units of affordable housing for very low-income families making between $33,000 and $42,000, and 193 units for those making $80,000 to $102,000 a year, a moderate income in San Mateo County. The rest of the units would be sold at market prices. Two-bedroom condominiums in the nearby Redwood Shores neighborhood of Redwood City sell for approximately $450,000. But the developers may not place the 97 units of very low-income housing on the site, noted Nobles, who is a former city planning commissioner. A city report acknowledges that the very low-income units may be built offsite. More than 20 unmitigated impacts were identified in the project’s environmental impact report, mostly related to traffic. Loss of views from Redwood City and from the neighboring cities of San Carlos and Belmont is also identified as an unmitigated environmental impact. Nobles said additional unmitigated impacts of the project include effects on a nearby wildlife refuge and conflicts with planes at the nearby San Carlos Airport, which lies one mile away. But Powers said the Federal Aviation Administration has approved the project. Nobles, 84, was a leader in a 1982 referendum in Redwood City to prevent development of Bair Island, an open space area adjacent to Marina Village. That land was bought by the federal government and is now protected open space. The 1982 ballot measure won by less than 50 votes out of approximately 20,000. “This election will not be that close,” Nobles predicted. Powers refused to speculate about the project’s future should it be rejected. “We’ll cross that bridge when we come to it,” he said. Contacts: Paul Powers, Pauls Corporation, (650) 369-8651. Mike Church, Redwood City Planning and Redevelopment Agency, (650) 780-7237. Will Travis, Bay Conservation and Development Commission, (415) 352-3653. People for Housing Not High-Rises: www.housingnothighrises.org

Fighting over water is a popular sport in the West, where generations of lawyers have refined the practice until it approaches an art. Often, the quantities at stake are prodigious, the output of entire watersheds. In other instances, however, the volume is so minuscule as to leave outsiders puzzled by all the fuss. A dispute of the latter sort is threatening to break out in Ventura County, where an unusually broad coalition of interests has united behind one of the largest dam-removal projects in American history. As federal, state and local agencies press forward with environmental review and demolition planning, a handful of opposing voices have strained to make themselves heard. Having failed so far to secure the guarantees they desire, they have begun offering thinly veiled threats of legal action to stop the project or at least delay it — a move that could prove fatal to critical funding. The dispute is an illustration that, in California, there is no such thing as a trivial amount of water, and that even the most marginal dams have their defenders. Matilija Dam, completed in 1948 in a rugged canyon 16 miles north of Ventura, was envisioned as a means of providing flood control to a handful of small downstream communities and recharging groundwater supplies used by farmers in the sparsely populated Ojai Valley. With so few potential beneficiaries, the dam had such a dismal cost-benefit ratio that no state or federal agency could be persuaded to build it. Undaunted, the dam’s backers persuaded local voters to pass a bond measure to provide funding, and the county flood control district tackled the task. Problems were apparent nearly from the start. Cracks began appearing on the downstream face of the dam almost immediately after completion, and they worsened over time. A 1959 survey revealed that the dam’s crest was tilting upstream, probably because a chemical reaction between alkali in the cement and silica in the aggregate used in the concrete was causing it to expand and deteriorate. Concerned about the dam’s safety, the county twice had the dam’s crest notched to lower it and reduce stress on the foundation. The dam originally was 198 feet tall; subsequent modifications lowered it 30 feet. Bad concrete was not Matilija Dam’s only flaw. The mountains surrounding it are rising rapidly and eroding nearly as rapidly, producing huge amounts of debris. Matilija’s 7,000-acre-foot reservoir first filled with water in 1952. But it also had begun filling with sediment — about 79 acre-feet a year, according to a 1954 report by the U.S. Bureau of Reclamation (BOR). By 1969, the reservoir’s storage capacity had been cut in half. According to the BOR, the dam now traps 6 million cubic yards of sediment, the equivalent of 14 Rose Bowl stadiums full of sand, silt, gravel and cobbles. The reservoir has a storage capacity of about 500 acre-feet and provides no flood control, although it does provide a trickle of water to supplement the supply of the Ojai area’s main water provider, the Casitas Municipal Water District (CMWD). The dam contributes to beach erosion by trapping sand that would otherwise reach the coast, and blocks access to critical spawning grounds for endangered southern steelhead in the Ventura River watershed. Efforts to demolish the dam and restore the ecosystem have been under way since 1998, when local advocates secured federal support for a feasibility study. Strategies for taking out the dam and dealing with the sediment behind it are detailed in a technical analysis released in June and are examined further in a draft EIR/EIS released in July, opening a pubic-comment period that closed August 30. Almost simultaneously, local lawmakers announced that $79 million in federal funding for the $110 million project had survived committee scrutiny in Congress and made it into this year’s federal Water Resources Development Act. The Army Corps of Engineers is the lead agency under the National Environmental Policy Act (NEPA). The Ventura County Watershed Protection Agency (former the county flood control district) is the lead agency under the California Environmental Quality Act (CEQA). A final record of decision on the project is expected by the end of the year. Dealing with the trapped sediment is the most costly aspect of the project. There is too much to haul away, and allowing it to be eroded naturally by storm flows after the dam is gone would cause the lower river to be buried beneath debris, smothering habitat and increasing the flood risk. Under the preferred alternative, the fine silt would be dredged out, transported downstream in a slurry line and piled up outside the main river channel. The remaining coarse sediments would be stabilized temporarily in the old reservoir site in such a way that extremely high flows would erode them gradually and carry them downstream. Legislative support reflects the extremely broad coalition of interests united in support of the removal project, including virtually every federal, state and local agency with an interest in the dam or in steelhead, as well as a lengthy roster of environmental groups. At a July 28 public hearing on the draft EIR/EIS, however, representatives of CMWD and some small rural water agencies complained that the document fails to address the effect of the dam removal on their water supply. And at least one of those representatives argued that this failure left the document open to challenge under CEQA and NEPA — a hint of litigation to come. He may have a point: The EIR/EIS acknowledges a potential temporary reduction in supply as a consequence of the project., but vaguely waves off the impact by noting that replacement water could be purchased from the State Water Project or “obtained from other sources” — the kind of “paper water” assurances California judges increasingly seem disinclined to tolerate. In a state where individual farms consume thousands of acre-feet a year, the amount of water at stake seems trivial. The Casitas district has a lease with the dam’s owner, the Ventura County Watershed Protection District, to store water behind the dam. That water is dribbled through the dam’s outlet works into the river channel after winter’s peak flows have subsided, allowing it to be diverted downstream by CMWD. According to the BOR, Matilija Dam adds an average of 590 acre-feet a year to the local water supply. Casitas provides conflicting estimates. In a July 20 letter to the editor of the local newspaper, the agency’s board president asserted that Matilija reservoir provides “about 600 acre-feet of water.” A July 21 press release from the district asserts that removal of the dam could cause the district’s customers to lose 2,400 acre-feet. In a more recent press release, the district claims Matilija yields 790 acre-feet of water a year, a figure repeated in a recent interview with Casitas General Manager John Johnson. Regardless of which figure is correct, Mother nature has ideas of her own. Continuing sediment deposition, the EIR/EIS warns, will reduce Matilija Reservoir’s capacity to 150 acre-feet by 2010 and less than 50 acre-feet by 2020. Even before sedimentation eliminates the reservoir, the water district will lose access to it. The district’s lease with the dam’s owner expires on Jan. 1, 2009 — about the same time the dam would start to come down, if the project moves forward. And it is unlikely the county will be interested in renewing that lease, as it is spearheading the removal process. Contacts: John Johnson, Casitas Municipal Water District, (805) 649-2251. Jeff Pratt, Ventura County Watershed Protection District, (805) 654-2001. Draft dam removal EIR/EIS: www.matilijadam.org/public-report.htm

Two recent appellate court rulings appear to have clarified aspects of the California Environmental Quality Act and may have even broken new legal ground. One case involved the project description in an environmental impact report and in public notices. The court held that the identity of the proposed project’s end user did not have to be disclosed. The other case contained a lengthy discussion about how to address a proposed project’s impact on a community’s jobs-housing ratio. In that case, the court offered deference the city’s handling of the issue and provided guidance to other jurisdictions that address jobs-housing ratios in environmental studies. The first case was from the Town of Apple Valley, in San Bernardino County’s high desert. In October 2001, Pluto Development submitted an application for a 1.2-million-square-foot distribution center on 300 acres at the corner of Dale Evans Parkway and Johnson Road. Eight months later, the City Council certified an EIR for the project, adopted a statement of overriding considerations because seven environmental impacts could not be fully mitigated, and approved the project. In July 2002, a group called Maintain Our Desert Environment (MODE) sued the city for failing to comply with CEQA. San Bernardino Superior Court Judge John Wade halted construction of the project briefly, but ultimately he ruled for the city. MODE appealed, but a unanimous three-judge panel of the Fourth District Court of Appeal, Division Two, upheld the lower court. Two key issues in the case were tied together: Whether the project opponents had exhausted their administrative remedies, and the adequacy of the project description. The environmental documents did not identify who would use the distribution center. In fact, Pluto Development is simply an arm of Wal-Mart. MODE and the state attorney general argued that public notices and the EIR’s project description were incomplete and misleading because they did not identify Wal-Mart as the user of the proposed facility. “Not a lot of people knew what was going on until after the fact,” explained Raymond Johnson, MODE’s attorney. He contended that the city hid Wal-Mart’s identity to minimize public comment. And, because fewer issues had been raised during the administrative process, MODE had fewer issues to pursue in court because the group could not litigate over issues that were not part of the administrative review. But the court ruled that the project description passed muster under CEQA. The statute requires public notices to contain a “brief description of the proposed project.” “The key word here is ‘brief,’” Presiding Justice Manuel Ramirez wrote for the court. “ n choosing to use that word, the Legislature suggested that the project description contained in the public notice need not be as extensive as the description in the EIR itself, but need only be a brief, compact summary without elaboration or detail.” The attorney general argued that the project description in the EIR itself was inaccurate because it identified Pluto, and not Wal-Mart, as the project proponent. “That argument fails to note the difference between a project proponent/developer and a project user/tenant,” Ramirez wrote. “If CEQA was to be interpreted as the attorney general suggests, no such projects could ever proceed until all potential users/tenants were identified and subsequently investigated by the lead agency. In addition to being completely impractical, this interpretation finds no support in the sphere of law and regulation encompassed by CEQA.” Ramirez cited , (2000) 83 Cal.App.4th 1004 (see , October 2000), in which the court ruled that the identification of Borders bookstore as the tenant of a proposed project was not enough to trigger additional environmental review. “So long as the project is approved, CEQA has no concern about who uses it,” Ramirez wrote. The attorney general and MODE argued that withholding Wal-Mart’s name resulted in less than the “full disclosure” required by CEQA. But the court held that the full disclosure requirement applies only to environmental impacts. “Therefore, in order to demonstrate that CEQA requires disclosure of the identification of the end user of a project, it is incumbent upon MODE and the attorney general to demonstrate that the identity implicates potential physical environmental impacts,” the court ruled. But MODE attorney Johnson said the court’s argument is circular: To demonstrate that a specific user will have an environmental impact, the public must know who the user is. If the public does not know, it cannot make a case. Johnson contended that Wal-Mart’s policies for delivery are different from other companies’ and results in large numbers of trucks parking around distribution centers. Johnson also complained because the court upheld the EIR’s traffic analysis, which was based on traffic at an unnamed “similar facility” and not on the Institute of Transportation Engineers’ figures that are typically used. “Effectively what the court is saying … is that even though you know who the proponent is, you don’t have to disclose that proponent,” Johnson complained. “And you don’t have to use industry standards for evaluating impacts. You can use another facility owned by the same proponent … with no way of being able to check it.” But Neal Singer, the city’s attorney, said the project opponents were trying to build too much into the project description requirement. “The administrative record was bad for them,” Singer said. So opponents argued that the project description should excuse them from the normal requirements for getting everything in the administrative record, he said. “There are all kinds of reasons for submitting projects,” Singer added. “If you had to know the end user every time, it would be pretty cumbersome,” MODE has asked the state Supreme Court to review the case. The second case came from the City of Irvine and involved the city’s general plan amendment and zoning change for the 7,743-acre “northern sphere,” near the former El Toro Marine Corps base. The city approved the northern sphere plan and an EIR in June 2002. The environmental group Defend the Bay sued, alleging, among other things, that the project would exacerbate employment-rich Irvine’s jobs-housing imbalance. A trial court ruled for the city. Defend the Bay appealed but the Fourth District, Division Three, upheld the lower court. The city’s plan called for development that would eventually create 17,667 jobs and 12,350 housing units, for a ratio of about 1.44 to 1. Defend the Bay argued that there was insufficient evidence for the EIR’s conclusion that the project would not worsen Irvine’s housing shortage. The EIR said that the project would actually improve the city’s jobs-housing balance because other projects have jobs-housing ratios of up to 8.2 to 1. Plus, the EIR stated, there is “considerable future housing growth” planned in South Orange County and the area is “expected to remain housing rich through 2025” with overall jobs-housing ratios in different areas of 1.05 to 1 and 1.28 to 1. “The evidence supports the no-adverse-impact conclusion for the current project,” Justice William Bedsworth wrote for the Fourth District. “Needed housing will be added, the city-wide imbalance of more jobs than housing will be ameliorated, and the shortfall in housing within the city will be made up by plentiful housing in adjacent communities. Whether we would agree that more jobs than housing is an adverse impact is not the question, and it is not our function to second-guess the city’s decision. Rather, our role is to determine if the conclusion reached by the city has support in the record. It does.” Defend the Bay argued that the project was inconsistent with the city’s general plan, which calls for “balanced residential and nonresidential development throughout the city.” The group also contended the EIR’s alternatives analysis and statement of overriding consideration were inadequate because they did not recognize the project’s housing imbalance. The court rejected these contentions. “Defend the Bay sees an inconsistency here because the project creates more jobs than housing and adds to the city’s housing shortage,” Bedsworth wrote. “Thus, it says, there is no balance between jobs and housing. This is semantic manipulation. We are not dealing with the assaying of minerals here. Balance does not require equivalence, but rather a weighing of pros and cons to achieve an acceptable mix. The general plan requires the city to ‘strive to improve’ the jobs-housing relationship. This project clearly does so. That Defend the Bay would strike a different balance than the city does not mean the project is inconsistent with the policies at issue.” Jeffrey Melching, the city’s lawyer, said the decision is useful because it says that blind adherence to a certain jobs-housing ratio is unnecessary. The court also said it was acceptable for the city to consider regional housing conditions. “I think it’s the first case in California that has a discussion in great detail of the jobs-housing ratio,” Melching said. “It really set out a guideline for how you’re going to look at jobs-housing balance questions.” Interestingly, Defend the Bay and the Irvine Company (the real party in interest) asked the court to dismiss the case after oral arguments were conducted because they had reached a settlement. The court declined to dismiss the matter, though. “Whether a public entity can approve a development project that creates more jobs than housing is a matter of public interest and likely to recur,” Bedsworth wrote in a footnote. The city was not a party to the settlement, Melching said. The fact that the city rezoned 227 acres in the northern sphere from a medical and science designation to residential “had nothing to do with the settlement. In fact, it predated the settlement,” he said. First Case: , No. E033904, 04 C.D.O.S. 6060, 2004 DJDAR 8195. Filed June 10, 2004. Ordered partially published July 2, 2004. The Lawyers: For MODE: Raymond M. Johnson, Johnson & Sedlack, (909) 506-9925. For Apple Valley: M. Neal Singer, Singer & Coffin, (949) 863-1224. For Pluto Development: Jennifer Guenther, Gresham, Savage, Nolan & Tilden, (909) 684-2171. Second Case: , No. G032062, 04 C.D.O.S. 5877, 2004 DJDAR 7965. Filed June 29, 2004. The Lawyers: For Defend the Bay: Kevin K. Johnson, Johnson & Hanson, (619) 696-6211. For the city: Jeffrey Melching, Rutan & Tucker, (714) 641-5100. For the Irvine Company: Christopher Garrett, Latham & Watkins, (619) 236-1234.

The court of appeal has cleared the way for the Modesto Redevelopment Agency to sue manufacturers and suppliers of dry cleaning solvents and equipment. While the First District Court of Appeal did not rule on the Redevelopment Agency’s claims, the unanimous appellate panel did overturn a lower court decision to dismiss the lawsuit against the manufacturers and suppliers. By potentially making more parties liable for the cleanup of contamination, the decision could bolster redevelopment agencies’ efforts to clean up tainted land and water. At issue is liability for contamination from two dry cleaning solvents, perchloroethylene (PERC) and trichloroethylene. The city argued that dry cleaners dumped the solvents into the city’s sewer system and let the solvents leak into the environment. The city sued a collection of manufacturers, distributors and dry cleaners. Under the Polanco Act (Health & Safety Code § 33459), a redevelopment agency may remediate contaminated properties within a project area and may recover the costs from the responsible parties. The definition of a “responsible party” is contained in the Porter Cologne Water Quality Control Act (Water Code § 13000 et seq.). San Francisco Superior Court Judge Richard Kramer granted summary judgment for the manufacturers and distributors, but he also asked for guidance from the appellate court. Writing for the First District, Justice Maria Rivera first dealt with the common law definition of nuisance, concluding, “ iability for nuisance does not hinge on whether the defendant owns, possesses or controls the property, nor on whether he is in a position to abate the nuisance; the critical question is whether the defendant created or assisted in the creation of the nuisance.” The court then moved to the question of whether the city’s claims under the Polanco Act fell within the realm of nuisance or of product liability law. The court turned to , (1990) 221 Cal.App.3d 1601, a case that also involved manufacturers, distributors and end users of hazardous materials. “We agree with the first stated conclusion in — that those who create or assist in creating a system that causes hazardous wastes to be disposed of improperly, or who instruct users to dispose of wastes improperly, can be held liable under the law of nuisance,” Rivera wrote. “Here, for example, the city claims that, with knowledge of the hazards involved, some of the defendants instructed the dry cleaners to set up their equipment to discharge solvent-containing wastewater into the drains and sewers, and that others gave dry cleaners instructions to dispose of spilled PERC on or in the ground. We conclude that these kinds of affirmative actions or instructions could support a finding that those defendants assisted in creating a nuisance.” But the court distinguished those parties that provided instruction to dry cleaners from manufacturers that made products but offered no guidance to end users. “ e conclude that those who took affirmative steps directed toward the improper discharge of solvent wastes — for instance, by manufacturing a system designed to dispose of wastes improperly or by instructing users of its products to dispose of wastes improperly — may be liable under that statute , but those who merely placed solvents into the stream of commerce without warning of the dangers of improper disposal are not liable under that section of the Porter-Cologne Act,” the court ruled. The First District returned the case to the trial court with instructions to “apply the standards articulated in this decision” to the facts in Modesto. The Case: , No. A104367, 04 C.D.O.S. 4692, 2004 DJDAR 6452. Filed May 28, 2004. Modified June 28, 2004 at 2004 DJDAR 7928. The Lawyers: For Modesto: Duane C. Miller, Miller, Axline & Sawyer, (916) 924-8600. For Dow Chemical (real party in interest): Gennaro Filice, Filice, Brown, Essa & McLeod, (510) 444-3131.

Habitat conservation plans have become popular tools for balancing development with protection of imperiled plant and animal species. Since Congress authorized them in 1982, nearly 500 habitat conservation plans (HCPs) have been adopted nationwide. The plans were not always so popular. Only 20 HCPs won approval during the program’s first 12 years. Their use accelerated in 1995, when the Clinton administration began promoting them in the hope of blunting congressional efforts to rewrite the Endangered Species Act (ESA). And they really took off in 1998 with adoption of the controversial “no surprises” policy, which made HCPs more attractive to landowners by promising them relief from future regulatory meddling. The no surprises policy was immediately attacked by environmental organizations, which recently won a court ruling overturning it. Although not quite the decisive victory the plaintiffs sought, the ruling nevertheless resulted in the suspension of the federal government’s HCP program and has cast doubt on its long-term future. As originally adopted in 1973, the ESA made it a crime to “take” a species listed as threatened or endangered, “take” being defined as any activity that kills or harms listed species or destroys their habitat. In 1982, Congress amended the ESA to allow federal agencies to issue permits for the “incidental take” of listed species during the course of otherwise lawful activity. Any application for an incidental take permit must be accompanied by an HCP that spells out how the effect of the permitted activity on a listed species will be minimized, monitored and mitigated. Landowners initially were unenthusiastic, mainly because of a requirement that HCPs include a clause allowing their terms to be changed whenever federal agencies deemed it necessary. Why go to the trouble and expense of developing a habitat plan, landowners reasoned, if the government could rewrite the permit at any time? The “no surprises” policy, originally announced in August 1994, was adopted to cure that perceived shortcoming. The policy required that federal agencies approving HCPs provide “assurances” to landowners that once an incidental take permit was approved, the government would not later change the permit’s terms in a way that increases the landowner’s costs or further restricts the use of natural resources. Under “no surprises,” no additional conservation or mitigation measures could be imposed even if changed circumstances rendered the HCP inadequate to protect a listed species. Biologists and environmentalists decried the policy, charging that it opened a gigantic loophole in the ESA and ignored the uncertainty inherent in the science of conservation biology and ecosystem management. In 1996, several groups filed a lawsuit alleging that the policy had been adopted in violation of the Administrative Procedures Act, which requires public notice and an opportunity for public comment before such regulations are adopted. The federal government settled that suit by agreeing to delay final adoption until the government had solicited public comment. About 800 comments subsequently were received, 755 of them opposing the policy. Many comments came from conservation biologists who warned that without a mechanism to respond to such “surprises” as drought, disease, fire, storms and floods, the HCP program would guarantee the loss of species and habitats. But the federal agencies adopted the original policy virtually unchanged. In 1998, six environmental groups sued again, arguing that the government still had failed to comply with administrative law and that the policy violated the ESA. While that suit was pending, the federal government adopted yet another policy making it more difficult to revoke incidental take permits. The plaintiffs, including the Spirit of the Sage Council and the Humane Society of the United States, amended their suit to allege that the revocation policy also violated the ESA and the Administrative Procedures Act. Intervening as defendants in the litigation were the city and county of San Diego — where large-scale HCPs are a particularly popular conservation tool (see , February 2003) — Orange County, Irvine Ranch Water District and a coalition that includes the National Association of Home Builders, the Building Industry Legal Defense Foundation, the Kern Water Bank Authority, and the American Forest and Paper Association. In December 2003, Judge Emmet Sullivan of the federal district court in Washington, D.C., ruled that the federal government had, indeed, violated the Administrative Procedures Act by adopting both the “no surprises” and permit revocation policies without prior public notice and without providing a meaningful opportunity for public comment. He suspended both policies and ordered officials to start over. “The ruling is a huge victory for imperiled animals and plants, as well as the public’s basic right to have a say in how public resources are managed,” said Leeona Klipstein, executive director of Spirit of the Sage Council. The defendants were less enthusiastic. “The inability to give ‘no surprises’ assurances to landowners would not only be a breach of faith with those landowners, it would also be a serious impediment to our ability to conserve and enhance habitat for imperiled wildlife,” said Craig Manson, assistant secretary of the Interior. Duane Desiderio, vice president of the National Association of Home Builders, was more blunt. “Now, a permit isn’t worth the paper it’s written on,” he told the Associated Press. The legal saga did not end there. Following the judge’s ruling, USFWS Director Steven Williams issued a memo directing his regional managers to continue approving HCPs containing the no surprises clause, as long as they also included legal language noting that the remaining stipulations in each HCP would remain in effect if the no surprises policy were subsequently invalidated. The plaintiffs went back to court, and on June 10, Judge Sullivan ordered the agencies to stop issuing HCPs containing the no surprises clause. He also gave the agencies until December 10 to complete the process of developing new permit rules. Williams then issued another memo directing his agency to stop approving incidental take permits altogether, but not before the USFWS on June 22 approved an HCP and incidental take permits covering 1 million acres and 146 species in rapidly growing western Riverside County. The Riverside County plan, perhaps the most ambitious HCP to date, does not contain the no surprises guarantee, although federal officials could add it later. Significantly, Judge Sullivan did not rule on the substantive claim in the lawsuit: that the no surprises policy violates the ESA. Absent such a ruling — and given the popularity of no surprises HCPs — it is likely the federal agencies will simply readopt the polices after the legally prescribed public comment process has been completed. If that happens, another round of litigation is likely. Contacts: U.S. Fish and Wildlife Service, habitat conservation planning: http://endangered.fws.gov/hcp/index.html Spirit of the Sage Council: www.sagecouncil.com

The average home price in California topped $400,000 in June. This news stimulated the now-familiar headlines about how even beat-up tract homes from the ’60s have become unaffordable for middle-class families. It’s getting to the point that a six-figure income does not guarantee homeownership. But what does this do for the more traditional “affordable” housing that we in California have supposedly been fighting about for the last several decades – housing not for the middle class but for low-wage workers and for the poor? Has this topic slipped off the radar screen altogether amid concerns about housing for teachers and paramedics? And when concern for poor people does emerge, will the astronomical price of housing make the cities and neighborhoods more amenable to lower-cost housing – or less? These thoughts surfaced recently when two affluent cities in South Orange County, struggled with the question of how to consider two different “affordable” housing projects. Back in January, the Steadfast Cos. gave up on an apartment proposal for a 23-acre hilltop site on Jeronimo Road in Mission Viejo after intense neighborhood opposition. The proposal called for 168 units, or about 7 units per gross acre – about the density of a typical single-family subdivision. Nevertheless, the project was designed to accommodate low- and moderate-income residents, and neighbors objected. According to the , everyone appearing before the Planning Commission opposed the project and claimed it “would bring overcrowded apartments, graffiti, gangs, drugs, and even drive-by shootings.” The perplexed developer, who had brought forth the low/mod project in response to direction from the city’s staff, went back to the drawing board. In June, the affordable housing dilemma surfaced in San Juan Capistrano when the City Council voted in closed session not to sell a 2.7-acre parcel of land to a nonprofit housing developer. Once again, neighborhood concern was the driver. As one council member said, “The neighbors were concerned about the density and the property values. I felt the complex was too expensive, too massive, and wasn’t right for the neighborhood.” In each of the two projects, some units would have been set aside for families categorized as “very low income,” which in the case of Orange County means a household income of about $37,000 per year, while others would have been set aside for “low income” families – those up to about $57,000. In each case, the city was driven by pressure to comply with the low- and moderate-income housing allocation target that resulted from the regional housing needs assessment process – the dreaded “housing element” requirement overseen by the state Department of Housing and Community Development. One of the ironies of the recent real estate boom is that it seems to have rendered the income categories somewhat obsolete. The housing element system requires jurisdictions to plan for the amount of housing required in three specialized income categories – very low income (up to 50% of median income), low income (50% to 80% of median income), and moderate income (80% to 120% of median income). The assumption is that people making more than 120% of median income can take care of themselves in the housing market. The recent debate over workforce housing has left the first two categories behind. Builders focusing on workforce housing usually say they are targeting households at 80-200% of median income – which today amounts to somewhere between $50,000 and $100,000 in most parts of California. (See , July 2004.) At current interest rates, these incomes can leverage home prices of $200,000 to $400,000 – prices that were well within range just a year or two ago, but are quickly vanishing today. More significantly, the recent price run-up has increased the gap between market and subsidized housing, especially in affluent areas. Maybe a family’s “low-income” pay can leverage a $200,000 house (or rent of $1,000 to $1,500 a month). But such neighbors don’t look very attractive when the average home price in your tract is $800,000 and rising by $10,000 or more a month.. Ironically, the problem is not that everybody wants to build high-end housing instead of affordable housing. There are plenty of developers – both nonprofit and for-profit – who are trying to make “affordable” housing deals work. There are also lots of different pots of money around – low-income housing tax credits, redevelopment housing setaside, Proposition 46 funds – that can be tossed into the mix. (San Diego, for example, is considering increasing the bed tax and/or levying a car rental tax to provide funds.) And there are lots of cities and counties promoting low-income housing, either because they think it is the right thing to do or because they feel the heat from HCD. The problem, as the two South Orange County examples suggest, is the sites. A given site may look good – until the public meetings start. Cities often try to avert this problem by identifying sites that seem segregated from higher-end residential neighborhoods. In the Mission Viejo case, the 23-acre parcel was located on a hill 40 feet above street level. It was adjacent to commercial property and did not abut any residential parcel. Residents responded by circulating a flier reading “Stop the Nightmare Before It Starts,” which contained a rendering of a public housing project. So who’s being left out in the cold? Actually, it is not all low-wage or low-income people. Some folks who qualify for affordable housing are more acceptable than others – senior citizens especially. In fact, some reports suggest that because cities often use senior projects to meet their affordable requirement, there’s a glut of senior housing. In Santa Clara County, developers seeking to avoid political opposition have focused on senior housing and housing for moderate-income residents (80-120% of median income). The result? “It’s cutthroat,” says one San Jose developer, who has proposed a moratorium on low-income senior housing. This glut may not last long, and it might not become widespread. After all, everyone is predicting a boom in the elderly population in California. But it does suggest that some low-income groups benefit while others do not. And that may have peculiar consequences as well. The gap in affordable housing appears mostly to affect families with low-wage workers – farmworkers, retail clerks, and others seeking to make ends meet on one or two minimum-wage jobs. But for these groups, there is another way around the housing problem – if they’re willing to overcrowd their way into the American dream. Anecdotal evidence suggests that extended immigrant families are bootstrapping their way to ownership even in this housing market by doubling and tripling up – not only in the housing unit itself, but on the mortgage. By combining their salaries, three, four, or five low-wage earners can escalate beyond the moderate-income category and buy a nice house. It will be interesting to see how affluent neighbors react to that kind of upward mobility, because there is an inherent conflict. On the one hand, the neighbors are undoubtedly thrilled to see owner-occupied single-family homes nearby. On the other hand, they’re probably not too happy to see these very same houses overcrowded by low-wage workers. Many cities have overcrowding ordinances, so the neighbors might call the local code enforcement department. But that would mean kicking people out of houses that they own. If that starts happening, the battle over the Jeronimo Road hill will pale by comparison.

When is a historic structure not historic – or, at least, when it is not historic enough to warrant environmental impact report under the California Environmental Quality Act? When a local government says so, because local governments are accorded deference by courts in reviewing their CEQA actions – at least in cases like this. At least that was the conclusion of the Sixth District Court of Appeal in a case involving a century-old railroad trestle in the Willow Glen neighborhood of San Jose. The case involves interpretation of a confusing section of CEQA regarding when an historic resource is subject to an EIR. In making the ruling, the court had to go deep into the rabbit hole of substantial evidence and fair argument. San Jose is planning to tear down the scenic trestle and replace it with a steel structure. In the process, the city concluded that the trestle was not an historic resources and therefore not subject to an EIR. San Jose adopted a mitigated negative declaration instead. Neighbors and historic preservationists sued over the CEQA action, claiming that there was a fair argument that the trestle was a historic resource and therefore an EIR should be required. Santa Clara County Superior Court Judge Joseph Huber ruled in favor of the neighbors, saying that a fair argument standard should apply. The city appealed but the neighbors tried to have the case declared moot because the city had already prepared an EIR, which it then used to re-approve the project. The court went ahead and considered the case anyway, saying the city’s could be still be required to vacate the approval depending on the outcome of the case. At issue was whether the city had to apply the “fair argument” standard to the question of whether an EIR was required under the CEQA – that is, is there a fair argument that the project would have a significant impact on the environment (in the case, on an historic resource), as required under one section of CEQA, Public Resources Code Section 21084.1. The law further says that just because a building or structure is not included in any state or historic register and doesn’t meet other criteria for historic significance doesn’t mean that the lead agency can’t still designate it as historic. The neighbors argued that this last provision should apply and the trestle should be considered a historic resource for CEQA purposes even though it had not been designated as historic in any other way. The court noted that the lead agency has to make a decision about significance based on the “preponderance of the evidence” and therefore the standard of review “logically must be whether substantial evidence supports the lead agency’s decision , not whether a fair argument can be made to the contrary.” Continuing, Justice Nathan Mihara wrote for the court: “Since the standard of judicial review for a presumptively historical resource is substantial evidence rather than fair argument, it cannot be that the Legislature intended for the standard of judicial review for a lead agency’s decision under the final sentence of section 21084.1 to be fair argument rather than substantial evidence…. “We conclude,” he wrote, “that the Legislature did not intend for the fair argument standard to apply to a lead agency’s decision that a resource is not a historical resource under the final sentence of section 21084.1.” He added: “To construe the statute otherwise would be inconsistent with the Legislature’s explicit provision authorizing a lead agency to find that a resource that was presumed to be a historical resource was not a historical resource if the lead agency found that a preponderance of the evidence supported its finding. We therefore conclude that the deferential substantial evidence standard of review is the correct standard to apply to the City’s finding that the Trestle is not a historical resource.” The court remanded the case to Judge Mihara to determine the merits of the MND’s determination that there was no substantial evidence that the trestle is an historic resource The Case: Friends of Willow Glen Trestle v. City of San Jose, No. H041563 The Lawyers: For Friends of Willow Glen Trestle: Susan Brandt-Hawley, Brandt-Hawle Law Group, susanbh@preservationlawyers.com  For City of San Jose: Katie Zoglin, Senior Deputy City Attorney, mailto:katie.zoglin@sanjoseca.gov

When Donald Trump announced his team of economic advisors – the first group, the one that was all men – it consisted, not surprisingly, mostly of real estate guys from New York. In fact, there was only one Ph.D. economist in the group: Peter Navarro, a longtime business professor at UC Irvine, who apparently captured Trump’s attention with his book and film, Crouching Tiger , which talks about the possibility of war with China and how to avoid it. And for those of you with long memories of California growth control wars, yes, we’re talking about that Peter Navarro: The guy who ran for mayor of San Diego in 1992 – and almost won – on an anti-growth platform. Navarro has been all over the place in defense of Trump’s economic policies lately – for example, with this spirited attack on Moody’s negative analysis of Trump’s economic plan. And while Trump may have stumbled across Navarro’s work on his own, it’s far more likely that he was led to it by Dan DiMicco, the former CEO of Nucor Steel, who’s been Trump’s leading who helped persuade his company to provide financial backing for the film version of Navarro’s book. So what’s a guy who once ran for office on an anti-growth platform doing as an economic advisor to a real estate developer running for president? As it turns out, this makes more sense than you might think. At first you wouldn’t think Navarro has much in common with the supposedly business-oriented Trump, but the common theme of Navarro’s thinking has been to use governmental power to create limits and walls, the better to manage things for the benefit of those inside the walls. This was the fundamental concept of 1980s-style California growth management, which often allied left-wing neighborhood anti-growth activists with right-wing anti-immigration activists. And it’s the fundamental concept of Trump’s campaign. Another way to look at it is simply that Trump and California slow-growthers are win-lose folks, not win-win folks. A lot of economioc theorists -- free-traders, for example, and real-estate development free-marketeers -- believe that the more there is, better it is for everybody. But Trump clearly doesn't believe this. To him, there are always winners and losers -- so you'd better box out the other guy if you want to be a winner or else make him pay through the nose. And the California slow-growthers feel the same way: More development creates losers as well as winners, so you'd better box out the bad development or at least make those developers pay through the nose. Navarro’s apparently a Democrat, though he has jokingly said that his political party is “economist”. He first emerged in San Diego during the anti-growth backlash to the real estate boom of the late 1980s, when a citizen initiative was adopted limiting the number of housing units that could be built per year – even though previous growth management measures sought to align infrastructure and development. In spite of the fact that he was a trained economist who taught in a business school, Navarro seemed to me like a pretty typical California anti-growth guy of that era. I first met him at a Realtors forum on growth management in Irvine around that time, and he advocated pretty standard growth control policies. When the real estate folks tried to ask him about “affordable housing,” he waved his hand in the air – as if to swat the topic away – and said, “Separate issue.” By which he meant that, to him, affordable housing was a thing you had to create via government subsidies, not something you could create via the market by reducing regulation. Navarro ramped it up in 1992 when he ran for mayor . He platform was, again, standard-issue California growth control for the time: limited growth, tying development to infrastructure and services (for example, no additional housing without an increase in police officers) and, tellingly, immigration restrictions. He deliberately rejected the Construction Industry PAC endorsement and finished first in the primary against County Supervisor Susan Golding and City Councilmember Ron Roberts, an architect who was the odds-on favorite (and is now on the Board of Supervisors). But he lost to Golding in the runoff by four points and later lost races for city council and Congress. If he had defeated – and he had managed to navigate the notoriously treacherous political waters of San Diego City Hall (trust me on this one) – he might have been a seminal figure in the history of California planning. Instead he moved to Laguna Beach, kept teaching at UC Irvine, and focused on providing corporations with assessments of geopolitical risk. Which led him to China and to Trump. He does seem to believe that the United States has to use a lot of military muscle to keep things even with China – and it’s never clear where Trump is on that question – and he does believe in better trade deals and apparently still in immigration reform. He recently argued – a la the supply siders – that Trump’s proposed tax cuts wouldn’t increase the deficit all that much because of the economic growth it would stimulate. But so far, neither he nor Trump has weighed in on the question of whether the number of housing units should be restricted or tied to the provision of infrastructure and public services. Though it’s kinda believable that they don’t agree on that one.

California has suffered plenty of perverse effects of Proposition 13: cuts to school funding, ossification of neighborhoods, general constraints on cities, etc. Most of those effects are by design or were, at least, foreseeable by Howard Jarvis and the measure’s supporters.  In Los Angeles County a new unintended consequence has arisen that, though it might prove great for the county, probably has Jarvis spinning in his grave.  This week, Measure M officially made it on to the countywide ballot for November. The successor to 2008’s Measure R, Measure M would further the region’s long-range transportation plan by augmenting and extending the county’s half-cent sales tax indefinitely (30-plus years at least) to generate tens of billions of dollars for transportation projects. Like Measure R, which paid for popular projects like the Expo Line to Santa Monica and Gold Line extension to Azusa, Measure M is a Christmas tree of projects, sprinkled around the county so that the measure will appeal to just enough voters to make it pass. And, at an estimated $800 million in annual revenue, Measure M is one big Christmas tree — Rockefeller Center big. It includes 27 highway projects, 33 transit projects, and a good deal of local return monies. Many people are excited about these projects, and with good reason.  In some ways, though, the number of projects and amount of expected funding is a direct consequence of the number of voters that Measure M has to woo. That number is two-thirds of the electorate. That’s the margin needed to pass a new tax in California. Thanks to Proposition 13. The Jarvis people thought that this provision would curb public spending and ease Californians’ tax burden. At the very least, they sought to ensure that proposed taxes were structured sensibly enough to appeal to a broad swath of voters. Measure M, though, is different.  The great thing about planning is that plans on paper cost nothing. Therefore, it costs Metro nothing — at least not up-front — to heap on project after project to appeal to different jurisdictions and different interests groups. Measure M has something for everyone: drivers, transit advocates, bike advocates; city people, valley people, South Bay people, even high desert people. Metro’s hope is that if people don’t vote for the interests of the county as a whole, they’ll at least vote for their own parochial interests. That’s why even small jurisdictions and institutions — some as as specific and localized as Cal State University, Northridge — are keeping score . As the Los Angeles Daily News reports , not everyone is happy, especially cities in south and southwestern L.A. County. Metro just hopes that enough people are happy. (Note: Now that it's on the ballot, Metro cannot directly lobby for the measure.) You could call it politicking, but Metro is doing nothing if not playing by the rules.  It’s not hard to imagine, though, that if the rules required a simple majority, the Measure R package would look much different. For starters, package that had to appeal to only 50 percent of voters would likely be smaller. It also might be more efficient. It might, for instance, omit a rail line from Torrance to West Hollywood or a highway to Palmdale, willfully sacrificing voter support in favor of projects that will be more cost-efficient and/or serve more people. It might be able to put more money into active transportation in the urban core and less money into highways serving the suburbs. I'm not making value judgements about any of these projects. I'm just saying that Metro's strategy might have been different in a non-Prop 13 world. In other words, Prop 13 compels Metro, and anyone else seeking to raise revenue via a vote, to come up with not necessarily the best spending program but rather the spending program that has the best chance of passing.  While we can be sure that many Prop 13 advocates will want nothing to do with Measure M, we can be equally sure that over the next few months transit advocates in Los Angeles will be crying “All aboard!” to rouse support for Measure M's proposed trains. Or at least, “Two-thirds aboard!”  Image credit: L.A. Metro

As this week’s DNC guests are discovering, Philadelphia is no San Francisco. It's not New York, Boston, or D.C. either. It’s not even Cleveland . But delegates who are stuck in traffic  getting out of the Wells Fargo Center would do well to take a peek down the side streets as they drive up Broad Street to their hotels and discover some of the delights of the host city. That goes double for the California delegation. Most Californians have probably never seen a rowhouse. For the uninitiated, they are a form of townhouse (or terrace house in Europe), two or three stories, often with basements. They share side walls with their neighbors. Rear overlook face small yards or patios, and front walls face the street. They’re taller than they are wide, and they’re about as deep as they are tall.  They basically look like boxes of instant oatmeal aligned on a grocery shelf.  Rowhouses superficially resemble typologies like Brooklyn brownstones and San Francisco Victorians, insofar as they too are packed tightly and share side walls. But the beauty of true rowhouses  is that they have none of the trappings of those fancier cousins. No gingerbread flourishes or imposing stoops, and no dumbwaiters or maid’s quarters. They are blue-collar shelters that came of age when East Coast cities were industrial powerhouses. Workers made decent wages — enough to enable them to escape from tenements, but not enough to move into anything fancy. Rowhouses typically have flat brick facades, occasional details like cornices or porches, and an utterly functional design. They are the Model T of urban shelter. Unlike a 100-year old car, though, those 100-year old houses still run just fine.  While rowhouses are popular throughout the East Coast, particularly in Baltimore, Washington, D.C., Virginia Beach, and parts of New York City, Philadelphia probably has more of them than any other city in the world. It has row upon row of rowhouses. As California cities agonize over how to house everyone, they are missing out on a typology with countless reasons to recommend it. Fundamentally, no typology so exquisitely balances the urban virtue of efficiency with the American virtue of individualism. Efficiency lies in the massing and use of space. Even two-story versions have floor-to-area ratios greater than 1. Shared walls mean that blocks are compact (and that heat dissipates slowly in the winter). A block that houses ten families in tract homes homes can house 100 in rowhouses. Unlike typical multifamily units, every rowhouse comes with its own address, advertising themselves as “home” to the people who live there. Rowhouses dispense with the gratuitousness of front yards, but their exteriors can express as much individualism as any lawn or feat of topiary. Some rowhouse residents plant tubs of flowers or even vegetables that put any lawn to shame. Some paint their shutters, doors, and other trim in imaginative colors. Some paint their entire facades. Others let their facades stand unadorned, in quiet conformity with their neighbors.  Suburban residents might protest that families need four walls to call their own and a freestanding structure to fawn over. Families in New York City and Los Angeles, among others, counter that two walls are better than zero. That’s essentially what you get in the multifamily dingbats and mid-rises of L.A., the mini-resorts of San Diego, and the walkups and high-rises of New York. Rowhouses promote a special kind of urbanism. The chance to walk out your front door and step immediately on to a sidewalk — in view of every other house on the block — creates a neighborliness that no apartment building ever could. Just like in the suburbs, residents are associated with their buildings and buildings with their residents. But rowhouse neighbors aren’t just fuzzy dots that scramble from front doors and into SUVs. Residents live close enough to be recognizable, but not so close that they feel obligated to each other. In very poor neighborhoods – of which there are too many in Philadelphia – squalor is contained on a house-by-house basis. It does not consume entire apartment buildings as it can in places like high-rise public housing complexes. Far from being monotonous or oppressive with their continuous facades and uniform roof heights, rowhouse streets are cozy — European, even. Streets are well framed and often lively, with subtle design flourishes that appeal to pedestrians, not to speeding drivers. There are no curb cuts to mar the sidewalks. There few streetscapes as pleasant as a rowhouse street with a canopy of mature trees. Appropriately, in the city where the United States liberated itself from England, rowhouses liberate their owners from another form of tyranny and taxation: homeowners associations. Rowhouses confer all the communal benefits of condominium living with none of the expense of HOA dues or headaches of creating and conforming with HOA regulations. Of course, if your roof leaks, you have to fix it yourself.  If entire East Coast cities are built on rowhouses, why does California have, essentially, zero? Surely culture is one reason. City founders in California weren’t about to emulate the tired, oppressive old East Coast. But those attitudes are changing. Many California cities are embracing density. Rowhouses might be perfect for low-density urban neighborhoods that really should be medium density. Except for those darn regulations. Rowhouses are basically what you get when a city wants to provide single-family homes and goes full-on libertarian. If you get rid of setback requirements, floor-to-area ratio maximums, buffer zones between structures, and height restrictions, you almost inevitably end up with rowhouses. California isn't quite there yet.  You need one more thing: no parking requirements.  When you live side-by-side in houses no wider than a car is long, there’s no room for a garage (unless you have generous alleyways). There’s also little need for a car. Rowhouse neighborhoods are generally dense enough to maximize the use of public transit. and because they’re dense, they’re usually not afraid of neighborhood-serving commercial, like restaurants, bars, and convenience stores. So they’re walkable and bikeable. If rail transit is nearby, so much the better.  For all the fleeting political proclamations that are likely to come out of Philadelphia this week, we also know that the city is capable of spawning universal, enduring institutions. We could do worse than to add a certain modest, functional, and efficient housing type to that list. Goodness knows, we all could use some modesty these days.  Photo credit: Eric Fischer via Flickr  creative commons.