With different aspects of the City of Bell scandal continuing to come to light, "Bell" is starting to become short-hand for government corruption. Still, Bell's mess does not displace San Bernardino County from its longtime position at the top of the local government corruption charts. The situation in Bell is easily summarized: A small group of top-level city employees and four councilmembers abused their powers to get rich at taxpayers' expense. According to prosecutors and news investigations, the city officials may have received millions of dollars in excessive salaries. They simply wrote themselves large paychecks. Meanwhile, the corruption allegations, indictments and convictions in San Bernardino County are numerous, complicated and mostly concern real estate development. The latest twist was last week's indictments of former county Supervisor Paul Biane, developer Jeff Burum, former Assistant Assessor Jim Erwin and Mark Kirk, a former chief of staff for Supervisor Gary Ovitt and currently the county's director of governmental affairs. San Bernardino County District Attorney Mike Ramon and the state attorney general's office allege that Burum used campaign contributions, gifts and threats to get Biane, Ovitt and then-Supervisor Bill Postmus to approve a $102 million settlement of a lawsuit that Burum had filed against the county. Biane, Erwin, Kirk and Burum have denied wrongdoing. In 2006, the San Bernardino County Board of Supervisors voted, 3-2, to settle the lawsuit filed by Burum's Colonies Partners, which was developing a 440-acre housing and retail project in Upland called Colonies Crossroads. The developer had sued for reimbursement for providing flood control facilities that it said were the county's responsibility. The settlement smelled bad at the time, as the county had already won one appellate court ruling in the litigation, and both the county counsel's office and outside attorneys urged rejection of the settlement. Maybe it was merely business-as-usual. Back in the 1990s, consecutive county administrators, Harry Mays and James Hlawek, went down after running the corner office like a criminal enterprise. Both were fined and subjected to county civil suits to recover ill-gotten riches. Mays spent two years in prison; Hlawek got off with three years probation. A county investment officer and the treasurer/tax collector also did time for taking bribes from a local businessman in exchange for county contract favors. In 2004, then-Supervisor Gerald Eaves pleaded guilty to accepting unreported gifts from a businessman who received county approval to erect billboards on county land. The mayor of Colton and two city councilmen went down in the same bribes-for-billboards scheme. Around the same time, two San Bernardino councilmembers pleaded guilty to accepting bribes from a developer. To summarize: Seven elected officials and three appointed government officials in three jurisdictions were guilty of various corruption schemes from the mid-'90s to the mid-'00s. In March of this year, Postmus, the former supervisor who resigned under pressure as county assessor in 2009, agreed to plead guilty to three felonies for conspiracy to accept a bribe, conflict of interest and misappropriation of public funds. The plea deal included Postmus's agreement to testify in future criminal trials. Two of the felonies to which Postmus copped stemmed from payments and gifts that he and his political operations received from Colonies Partners. (The other felony concerns Postmus hiring people in the assessor's office to do nothing but political work. Postmus aide Adam Aleman had already pleaded guilty to destroying public documents and lying to a grand jury about the political operations on the public's dime; a different aide is awaiting trial.) When the district attorney and attorney general's office indicted Postmus last year, they did not name five un-indicted co-conspirators. However, it was easy to identify Biane (who voted for the settlement and lost re-election last year), Kirk, Colonies managing partners Jeff Burum and Dan Richards, and Colonies PR consultant Patrick O'Reilly as the five. All have vigorously denied wrongdoing, but the indictments appeared to be a matter of time. Erwin was already being prosecuted. Meanwhile, local newspapers have reported that the county has spent $21 million suing the City of Upland, San Bernardino Associated Governments (SANBAG) and Caltrans in an attempt to recoup some of the $102 million settlement cost. SANBAG recently increased its contract with attorneys defending against the lawsuit to $8 million. Upland has spent $3.6 million defending the lawsuit. That's more than $30 million in public funds spent in an argument over a lawsuit settlement that, according to prosecutors, was illegitimate. And there's so much more. In April, the attorney general's office charged county Supervisor Neil Derry with perjury and filing a false campaign expense report. The attorney general alleges Derry laundered $10,000 in campaign contributions, including $5,000 from area developer Arnold Stubblefield, through Postmus's political operation. Rex Gutierrez, a former assessor's office employee and Rancho Cucamonga councilman, is now a resident of Tehachapi State Prison. Postmus hired Gutierrez at the assessor's office as a favor to Burum, whose nonprofit company received a $42.5 million contract from Rancho Cucamonga to maintain affordability covenants at an apartment complex. Former San Bernardino County CEO Mark Uffer last year filed a whistle-blower retaliation lawsuit against the county after the Board of Supervisors voted 3-2 to fire him. Uffer alleges he was dumped because he tried to halt the county-Colonies settlement and reign in numerous other corrupt practices. A trial on Uffer's claims could provide the biggest show yet. John Pomierski resigned as Upland mayor in February, shortly before being indicted for allegedly trying to extort money from a nightclub and medical marijuana cooperative that were seeking city permits. Also indicted was John Hennes, an appointee to the city's building appeals board. District attorney's office investigators and the FBI raided Arrowhead Regional Medical Center, the county hospital in Colton, last fall. Investigators have not explained what they were seeking, but there are allegations that high-ranking county officials received free treatment at the hospital. District attorney's investigators also are known to be asking questions about the county's negotiations, since suspended, with potential developers of 1,200 acres of surplus county land in Rancho Cucamonga. The City of Bell? One simple scheme to take tax money. That's the minor leagues compared with San Bernardino County. – Paul Shigley

Here's some flattering news about the state of urbanism in California: the freeway capital of the world is also, apparently, one of the public transit capitals of the country. A recently released study by the Brookings Institution entitled "Missed Opportunity: Jobs and Transit in America" ranks four California metro areas in the top ten out of 100 metro areas studied, according to at least one metric.  The study ranks metro areas according to the percent of the working-age population with reasonably convenient access to transit. With 97% coverage, Honolulu took the top spot, with a slew of western cities following it. Cities in the bottom ten, many of which are in the South, had no better than 35% coverage.  California dominates the top-10 with these four metros:  No. 2 Los Angeles-Long Beach-Santa Ana, with 96% coverage.  No. 3 San Jose-Sunnyale-Santa Clara, with 95.6% coverage No. 5 San Francisco-Oakland-Fremont, with 91.7% coverage No. 6 Modesto, with 90.4% coverage Other California cities fared nearly as well: Stockton ranks 15th, the San Deigo area ranks 16th, the Sacramento area ranks 19th, Bakersfield ranks 21st, and Riverside-San Bernardino ranks 23rd. Some of these areas rank considerably lower when frequency of service is factored in.  That's the good news. The bad news is that, in many of these cities, the buses and trains that residents can board so easily won't necessarily take them where they want to go, or get them there in a timely manner. The study places a premium on the ability of commuters to go from home to work in less than 90 minutes. According to this metric, San Jose-Sunnyvale does great with 58.4% and a No. 3 ranking. But L.A.-Long Beach-Santa Ana falls to 69th place, with only 25% accessible. In the Riverside-San Bernardino area, only 6.6% percent of jobs are served by transit, ranking the area 96th.  It's probably not worthwhile to fret about individual rankings all that much. However, Brookings' methodology -- and its implicit statement about what transit planners' priorities ought to be -- is compelling, especially as California regions attempt to reduce their vehicle-miles traveled in accordance with SB 375.  California clearly has a lot of transit, with buses and trains going every which way. But the polycentric nature of all of these areas means that jobs are spread out and optimal routes are hard to come by--hence the "spatial mismatch" that can confound transportation planners. The Brookings research in many ways seems to dovetail with a study put out by the Public Policy Institute of California, which contended in its report "Driving Change" that the success of SB 375 depends in part on orienting transit towards employment centers rather than towards residential centers. It thus implied that TOD should focus more on offices than on apartments.  Put together, these two studies illustrate a concept that most planners have known all along: transit and land use planning must be coordinated for either to be efficient. California's transit agencies have done a great job covering vast amounts of territory. Now it's time for them to serve vast numbers of people.  --Josh Stephens

A state appellate court has ruled that a city and its redevelopment agency's approval of a term sheet for the development of a professional football stadium was not a "project approval" that required review under the California Environmental Quality Act Although the term sheet was detailed, and substantial sums had been spent on consultants leading up to that agreement, it did not commit the city to a definite course of action, the Sixth District Court of Appeal ruled. At issue was a term sheet approved in June 2009 by the City of Santa Clara and the city's Redevelopment Agency (collectively, "the city"). It set forth the basic provisions of a proposed transaction to develop a stadium that would be the home field of the San Francisco 49ers National Football League franchise. The terms included the stadium location, size, financing and operations (see CP&DR Deals, April 2008 ). The property for the proposed stadium is currently a parking lot leased to Cedar Fair, the owner and operator of Great America amusement park. Cedar Fair argued that the term sheet approvals had to be set aside because no environmental impact report (EIR) had been prepared pursuant to the California Environmental Quality Act (CEQA) prior to the governmental approvals of the term sheet. A Santa Clara County Superior Court judge held that preparation of an EIR was not required because approval of the term sheet did not constitute approval of a project under CEQA. A unanimous three-judge panel of the Sixth District Court of Appeal affirmed the decision in favor of the city. In deciding whether an EIR was required in the Cedar Fair case, the Court of Appeal looked to the seminal decision by the California Supreme Court in Save Tara v. City of West Hollywood, (2008) 45 Cal.4th 116 (see CP&DR Legal Digest, December 2008 ). Under the standard established in Save Tara, the key question in this case was "whether the term sheet, �viewed in light of all the surrounding circumstances,' �as a practical matter,' committed the city or the Redevelopment Agency �to the project as a whole or to any particular features, so as to effectively preclude any alternatives or mitigation measures that CEQA would otherwise require to be considered, including the alternative of not going forward with the project,'" Justice Franklin Elia wrote, citing Save Tara. In the Santa Clara situation, that standard was not met. Cedar Fair argued that, as a practical matter, the city had in fact committed itself to the proposed stadium project in light of the 39-page term sheet's high level of detail, subsequent statements made by city representatives in support of the stadium, and the large amount of money already invested by the redevelopment agency in the process of reaching an eventual final agreement. The Court of Appeal rejected that argument for several reasons. First, the court acknowledged that the term sheet was extremely detailed and that the parties preliminarily agreed to numerous provisions concerning the proposed stadium project. However, the court found that mere detail did not constitute the requisite "approval" under CEQA. The court pointed out that the Supreme Court in Save Tara rejected the idea that "once a private project had been described in sufficient detail, any public-private agreement related to the project would require CEQA review." Second, the court found that the term sheet expressly bound the parties only to continue negotiating in good faith and did not make the terms binding or even conditionally binding. By its very language, the term sheet "memorialize the preliminary terms"; mandated that the parties use the term sheet as the "general framework" for "good faith negotiations"; stated that the City "retain the absolute sole discretion" to make decisions under CEQA, including deciding "not to proceed with the Stadium project"; provided that the term sheet created " o legal obligations � unless and until the parties have negotiated, executed and delivered mutually acceptable agreements based upon information produced from the CEQA environmental review process"; made clear the parties' intent to not "create any binding contractual obligations" with respect to the development of the stadium or to commit any party to "a particular course of action"; and recognized that a no project alternative was still available. "The commitment to continue negotiations pursuant to the term sheet is unlike the commitment in Save Tara, where the City of West Hollywood contractually bound itself to sell land for private development conditioned upon CEQA compliance," Elia wrote.  Third, even though substantial sums were spent on consultants because of the magnitude and complexity of the project being negotiated, and even though such sums suggested that the city was "politically dedicated to the goal of developing a NFL stadium," those expenditures did not establish any legal commitment to any feature of the project that effectively foreclosed meaningful environmental review, the court ruled. Fourth, the court rejected Cedar Fair's arguments regarding the subsequent statements by city councilmembers and city staff members regarding the binding nature of the term sheet. Those statements contradicted the language in the term sheet, because the term sheet "cannot be reasonably construed as creating any contractual commitment on the part of to conditionally approve or undertake any aspect or feature of the stadium project," the court ruled. In summary, the Sixth District held that the allegations of the petition and the judicially noticed documents "do not demonstrate that the term sheet, in light of surrounding circumstances alleged, committed respondents, as a practical matter, to a definite course of action with respect to development of a stadium and effectively ruled out any mitigation measure or alternative, including the alternative of not going forward with the project." Still, Elia acknowledged, "The modern phenomenon of �public-private partnerships' for development makes the time of �approval' under CEQA more difficult to ascertain since a local agency may be a vocal and vigorous advocate of a proposed project as well as an approving agency. But �an agency does not commit itself to a project simply by being a proponent or advocate of the project.'" Santa Clara did approve an EIR for the stadium project last year. Cedar Fair has filed a separate lawsuit challenging the validity of that document.  The Case: Cedar Fair, L.P. v. City of Santa Clara, No. H035619, 2011 Cal.App.LEXIS 506. Filed April 6, 2011. Ordered published April 28, 2011. The Lawyers: For Cedar Fair: Sean A. Cottle and John A. Hickey, Hoge, Fenton, Jones & Appel, 408.287.9501. For the City: Karen M. Tiedemann and Juliet E. Cox, Goldfarb & Lipman, 510.836.6336.

The midpoint of 2011 is rapidly approaching, and that means the first glimpses of the "Sustainable Communities Strategies" created under SB 375 are beginning to emerge. In particular, the "Big Four" metropolitan planning organizations � those from the Los Angeles Area, the Bay Area, San Diego, and Sacramento � are all moving forward with their SCS processes, and discernable trends are beginning to emerge. Although there are 18 MPOs in California � all of which must create SCS's under SB 375 � the "Big Four" cover the communities in which almost 30 million people live. (Most of the rest of the population lives in the San Joaquin Valley, where 8 MPOs are attempting to coordinate their efforts to become, essentially, the fifth member of the Big Four.) No matter how you cut it, it's not easy for any of the Big Four to hit the targets for greenhouse gas emissions reduction being laid down for them by the state. The targets are expressed in terms of per-capita greenhouse gas emissions reduction, and the MPOs typically have a high-single-digit reduction (at least) by 2020 and a 12-15% reduction by 2035. That's tough to do � especially considering 2020 is now only a little over eight years away. On the other hand, it's not like the MPOs are starting from scratch. The MPOs have been working on "smart growth"-style blueprint plans for several years that move in the direction of an SCS. "All four MPOs have been doing this stuff for a long time," said Steve Heminger, executive director of the Bay Area Metropolitan Transportation Commission, at the recent General Assembly of the Southern California Association of Governments in La Quinta. "We have to remind ourselves to be proud of what we have already done." And, increasingly, the MPOs are working to sell the major changes in urban form based not on greenhouse gas emissions reduction per-se, but on what have come to be known as the "co-benefits" � shorter commutes, more land conservation, a shift away from the traffic congestion created by automobiles, and many other things. As SCAG's Hasan Ikhrata said at the General Assembly, maybe the greenhouse gas emissions reduction should be considered the co-benefits compared with everything else. For better or worse, however, that's not how SB 375 is set up. Because it's largely an implementation mechanism for the AB 32, the greenhouse gas emissions reduction law, SB 375 is � in technical terms � an exercise in air-quality modeling, where different strategies are manipulated in different ways to try to hit the targets. So far, the San Diego Association of Governments is the first out of the box with a draft SCS (as required by law), but Sacramento has also done a lot of work on it. Meanwhile, MTC, partnering with the Association of Bay Area Governments, recently released its "Initial Vision Scenario," which moves a lot of development around the region (see CP&DR Vol. 26, No. 8, April 2011 ), and the two COGs within SCAG that "took delegation" � that is, agreed to do their own SCSs � have released drafts. The SANDAG experience so far is telling. Two aspects of the draft SCS in particular are worth noting.  The first is the fact that SANDAG chose to take the SCS out 40 years, to 2050, rather than 25. SANDAG's still got to hit the 2020 (7%) and 2035 (13%) targets, of course, but the longer time frame does allow the region to put more things in place and see how they play out over a longer time frame. The second � which smaller MPOs are going to have a tough time replicating � is a really aggressive effort involving transit and high-occupancy vehicles. SANDAG Executive Director Gary Gallegos notes that the SCS calls for running10-minute headways on the trolley system and undergrounding the trolley in downtown San Diego to increase capacity. The SCS calls for a 250% increase in transit service miles and "hundreds of miles" of managed lanes (basically, toll lanes to manage congestion). This results are trend-bending � Gallegos noted that transit travel time from Otay Mesa to job centers near UC San Diego would be cut by two-thirds by 2050, so they are competitive with driving � but the amount of investment and behavioral change required is nothing short of mind-bending. Indeed, it's a big question as to how � and whether � California can make the level of investment in transit that's required to bend these trends sufficiently. There's been a lot of discussion recently about how California's budget crisis has compelled the state to cut back on transit funding at exactly the same time that the state is implementing SB 375. "Transit in California is on very shaky financial ground," Heminger said at the SCAG event. "The shortfall is $1 billion a year."  Local transit advocates around the state � especially in Los Angeles � have been calling for the state to give regions and localities more options to raise revenue for transit. But Senate Majority Leader Darrell Steinberg's recent proposal to give locals more taxing options generally is clearly going to run into the Republican anti-tax buzzsaw, so it's not clear whether those options will really be expanded. Maybe the most interesting conclusion you can draw from the early SCS work is that the whole land use/transit thing can only take you so far. The conventional wisdom over the past couple of years � promoted by me among others � is that you need land use change to reduce greenhouse gas emissions because technological solutions can't solve the problem all by themselves. This is clearly true. But it's also true that you can't hit the SCS targets without the transportation demand management and transportation system management components. Look at SANDAG's "hundreds of miles" of priced lanes and the Bay Area's general willingness to pay tolls, both of which manage demand. (I recently read a blog that said one of the ten ways you know you're from the Bay Area is that you think $7 is a reasonable price to pay to cross a bridge.) Perhaps the most dramatic illustration of this general trend is contained in the draft Gateway COG SCS prepared by Cambridge Systematic ( pdf ). Cambridge concluded that the Gateway cities � those along the 710 corridor, mostly � can cut per-capita GHG emissions by 4% by 2020 through transportation and transit efforts and another 3% through land use change. But there it stops. From 2020 and 2035 � at least according to this draft SCS � the only way to cut per-capita emissions further is to build a series of regional and statewide projects. Some of these are transit projects � High Speed Rail, the Green Line to LAX � but most of them are highway improvements, such as expanding I-5 in southern L.A. County and building an I-710 freight corridor. The bottom line is that the SCS process doesn't necessarily mean that land use change will fall out as the biggest factor in meeting the targets. This isn't an either/or thing � either land use change or roadway improvements. It's a both/and. We're going to have to do everything we can possibly think of and then some to get there. And then we've got to figure out where to get the money.

While the Legislature remains deadlocked on Gov. Jerry Brown's budget proposal, it seems that what does not kill redevelopment may in fact make it stronger. Many observers had written the obituary for the state's redevelopment system back in March when Brown was insisting that the state had to recoup redevelopment's tax increment in order to help plug its $24 billion deficit. A late proposal by the California Redevelopment Agency and League of California Cities seemed to go nowhere.  A flurry of activity this week suggests, however, that the fight to save redevelopment is very much alive. In particular,  the rallying cry has been to reform, and not eliminate, redevelopment. Recently introduced legislation attempts to do just that.  SB 286 - Wright SB 286 , sponsored by Senator Rod Wright (D-Los Angeles) has been amended to include CRA's package of redevelopment reform measures.  According to the CRA, the reform measures in SB 286 would add specificity to the types of information needed for making findings of blight; limit the percentage of total land area of a jurisdiction which may be included in project areas; exclude the schools share of property taxes in new project areas formed after January 1, 2012; prohibit uses of tax increment for specific purposes such as golf courses and never before developed parcels of land if 20 acres or more; add new requirements to five-year implementation plans and require agencies to focus activities on state priorities such as job creation, cleaning up contaminated property, basic infrastructure needs, and affordable housing; provide for more public oversight; require development of performance indicators to measure agency success; require performance audits of agencies by the State Auditor and provide funds for those reviews; and specifically prohibit the use of tax increment for non-redevelopment, non-agency operating costs. The bill was heard in the Senate Governance and Finance Committee on May 5 but no action was taken. The bill has not yet moved forward in part because some members want to wait until the governor releases his May revise, due out on May 14. That day is the deadline for bills to be approved by committee in their house of origin. However, there is speculation that SB 286 may be allowed to miss this deadline due to the heated debate surrounding redevelopment. CRA officials have said that SB 286, paired with SB 450, represents the most comprehensive reform of redevelopment in nearly two decades.   SB 286 Analysis by Senate Governance and Finance Committee SB 450 - Lowenthal In addition, and complementary, to the proposals in SB 286, Sen. Alan Lowenthal's (D-Long Beach) SB 450  addresses the use of redevelopment housing set-aside funds. SB 450 includes requirements to restrict the use of the Low- and Moderate-Income Housing Funds for planning and general administrative expenses. It also would provide funding for audits of redevelopment agency housing programs by the Department of Housing and Community Development, to allow the State Controller to conduct reviews of redevelopment agency audits and recommend suspension of auditors that are not conducting audits in accordance with the applicable standards and guidelines.   CRA believes that these and other reforms will help redevelopment agencies to more efficiently utilize their affordable housing funds, track their accomplishments over the long term, and keep the public better informed of the agencies' affordable housing programs and developments. SB 77 and AB 101 SB 77 and AB 101 are the budget bills that would eliminate redevelopment. Both are still technically alive in both houses. However, the Legislature appears to have reached an impasse and it is unclear whether either will come up for a vote.  CRA/League Alternative Proposal The CRA says that its proposal for agencies to voluntarily transfer funds has not yet been made into a bill because of the stall in budget talks. The CRA is waiting for the governor's revise to come out May 14, at which point budget talks may resume. The CRA says that its proposal does not depend on either SB 450 or SB 286.  The CRA recently held a videoconference discussing all of these pending measures. A recording of that conference can be viewed here .  Validating Acts At the same time that reform measures have been advanced, lawmakers in the Senate Local Government Committee have taken measures that the CRA and League say would inappropriately weaken redevelopment agencies. The Validating Acts are largely procedural, usually bipartisan bills that affirm the state's support for certain local actions, including bond issuances by retroactively fixing inadvertent errors. Generally three such bills come out each year; this year they are SB 191, SB 192, and SB 193.  While redevelopment has traditionally been covered by the validating acts, the current bill language excludes them. CRA and the League contend that this move represents an inappropriately partisan effort to support Gov. Brown's plan to eliminate redevelopment agencies.  When Senator Lois Wolk presented the validating acts last Wednesday in the Assembly Local Government Committee, Assembly Member Alejo asked for amendments to all three bills.  Mr. Alejo reportedly said that he was concerned about the actions taken by some redevelopment agencies in recent months in reaction to the Governor's proposal to end redevelopment agencies.  He worried that the validating acts might be used inappropriately to attempt to protect questionable asset transfers and interagency borrowing.   The CRA contends that this move was implemented at the behest of the Department of Finance following last week's Senate Government and Finance Committee hearing. It further contends that the exclusion represents retaliation against local governments that have attempted to shield those assets from a possible "fire sale" if and when agencies are liquidated.  These measures are due to be heard May 11 in the Assembly Local Government Committee.  --Josh Stephens

"Life in the Slow Lane" is the headline of a piece in The Economist that provides a very interesting analysis of the lack of infrastructure spending in the United States. Because the story is in The Economist , it comes at the topic from a European perspective. No doubt this will trouble conservatives because, well … I'm not sure why conservatives fear comparisons with other prosperous, industrialized, democratic societies. Anyway, I think the story is worth reading. The Economist looks primarily at transportation systems and makes the point that the U.S. is not only failing to build needed capacity, the country for decades has not adequately maintained the roads, railways and air transport systems it has. I don't see how there could be any argument on this point. Has a single study in the last 20 years concluded that we're doing a good job with transportation infrastructure? I think a similar point could be made about other critical systems – water, wastewater, schools, flood control. We continue to make due with a surprising amount of physical structures built during the Depression and the post-war era. Yet all we hear these days is that we can't afford new roads, levees and water lines, and we defer maintenance at every opportunity. The next federal transportation bill will likely be smaller than the previous one, which itself was inadequate. (Some commentators are already calling it dead on arrival .) Environmental Protection Agency programs that pay for clean water projects appear likely to suffer major budget reductions. In Sacramento, hardly anyone is even talking about this stuff – even though California's roadways are the most congested and in just about the poorest condition; even though some communities in the Central Valley lack safe drinking water ; even though we know that, sooner rather than later, a flood is going to wallop the Delta and put the two largest water delivery systems out of commission for an extended period. None of this stuff is new. The Economist says the U.S. can't figure out, or doesn't want to figure out, how to pay for basic transportation infrastructure. The bottom line is that we are unwilling to pay for the literal building blocks of the country. Why? Why can't we find agreement on something so obvious? We wring our hands and pound podiums about burdening our children and grandchildren with budgetary debt at the same time we ignore the infrastructure deficit – and its severe consequences – that we're forcing on those same generations. The Economist story concludes that, without substantial infrastructure investment, the American economy will grind to a halt. I think the grinding has already begun. Sorry, kids. – Paul Shigley

The unique geography of the San Francisco Bay ensures that there is only one Bay Area. Uniqueness and unity are not, however, the same thing, and planners are now working to convince the Bay Area ' s own residents and public officials that there is indeed One Bay Area. One Bay Area is the brand name under which the region ' s Sustainable Communities Strategy is being developed. It is a collaboration among the region ' s two major planning organizations  –  the Metropolitan Transportation Commission, which is the region ' s official Metropolitan Planning Organization, and the Association of Bay Area Governments  –  plus the San Francisco Bay Conservation and Development Commission, the Bay Area Air Quality Management District. The process also includes and from the region ' s nine counties and 101 cities. Building on generations of collaboration among these entities, the region ' s SCS, which is mandated by Senate Bill 375, will be called Plan Bay Area. In March, Plan Bay Area took its first step towards becoming reality with the release of the Initial Vision Scenario by MTC and ABAG. The IVS outlines expected population growth in the region and broadly identifies the locations where new residents and households can be located with the least impact on vehicle miles traveled and greenhouse gas emissions, pursuant to the goals of SB 375. " Frankly we are trying to get people to think as one, "  said Randy Rechtsler, director of legislation and public affairs at the MTC.  " We often use the phrase  ‘ Bay Area '  so why don ' t we get people focused on the place they live? " " Plan Bay Area is the brand that is being put on the concept of this SCS, "  said Jeff Hobson, deputy director of the transit advocacy group TransForm.  " That ' s all more of a communications issue than an issue of planning conflicts. " The IVS operates on the assumption that in the next 25 years the Bay Area will add 2 million people and 902, 000 housing units, for a 33 percent increase. The IVF projects that Plan Bay Area, when completed, will direct 97 percent of that growth to infill areas, leaving only 3 percent of household growth to greenfields. It also concentrates growth in the counties that are already most heavily urbanized. Santa Clara, Contra Costa, and Alameda counties will accommodate roughly two-thirds of that growth. Rechtsler said that the need for cities to conduct Regional Housing Needs Assessments will compel them to accept their allocated numbers. But that will not be nearly enough to make Plan Bay Area attractive to all the region ' s cities. " Since (SB 375) has no enforcement teeth in it and was much more the carrot as opposed to the stick approach, the question is, are there any carrots that are going to be available to create some sort of an incentive, "  said Jake Mackenzie, vice mayor of Rohnert Park and MTC commissioner. The plan relies to a great extent on Priority Development Areas (PDAs), to which the majority of new growth will be directed. PDAs will be sprinkled throughout the region ' s cities and, presumably, entail a range of incentives and supporting policies to facilitate development. To make PDAs worthwhile, planners say that the region will have to abandon its current formula of allocating infrastructure funds and instead start awarding them according to merit. In essence, cities that are willing to openly embrace their PDAs and attract development to them would receive a more generous share of public funds, leaving reluctant cities to fend for themselves. " It ' s clear that there are some cities that really are stepping up … those are the places that are going to need to get the lion ' s share of our dollars, "  said Stephanie Reyes policy director at the Greenbelt Alliance. The implementation of PDAs is just one issue that is likely to dominate regionwide discussions, which begin in earnest in May with a series of public workshops. Portraying the region ' s growth in such broad strokes, the IVF appears straightforward enough. It is, however, intended largely as a conversation piece around which countless discussions will revolve in the coming months and years. That ' s where Plan Bay Area and One Bay Area become public relations campaigns as much as they are planning documents. The challenge of getting literally millions of stakeholders on board is one that will face all four of the state ' s major urban regions as they all develop their own Sustainable Communities Strategies. " But when it comes back to the county and to the local level, I still don ' t think that we ' ve properly captured the attention of our colleagues, and we certainly haven ' t captured the public ' s attention, "  said Mackenzie. Bay Area planners say that the buy-in necessary for the plan ' s success might come more easily in the Bay Area than it will in the state ' s other three, less geographically distinctive regions. As diverse as the nine counties are  –  from vineyard-laced Napa to the city-county of San Francisco  –  the planners behind Plan Bay Area are hoping to capitalize on the nine counties '  physical and psychological connections to the bay. " The Bay Area also rallied around other things too, building of bridges and building of BART, "  said Rentschler.  " All this groundwork has been laid for us and asking people in the Bay Area to live in a more dense setting is actually asking someone to take advantage of these great assets that we already have here. " This mentality, planners say, has produced a rich tradition of regional planning that might not link, for instance, Redlands to Santa Monica or Oceanside to Poway in quite the same way. " I think we have a chance better than others because we have the Bay to rally around, "  said Rentschler.  " That ' s a great asset to have. " If Bay Area stakeholders are to disagree, a host of opportunities for dissention await. Though SB 375 seeks the reduction of greenhouse gas emissions, many insist that it should also lead to  –  or at least not impede  –  economic growth. Scott Zengel, vice president at the business group Bay Area Council, said that, as currently articulated, the IVS fails to draw a necessary connection between population growth, housing locations, and jobs. " Generally what we see as missing from the process — and this goes from performance targets to the Initial Vision Scenario — is in-depth economics and jobs indicators and analysis and scenario-running, "  said Zengel .  " Jobs are an input for the model. From our perspective, it ' s a bit backwards from how it ' s supposed to be. " Planners argue, however, that job-creation simply is not a part of the planning process. In fact, they say that the plan will naturally improve the region ' s economic fortunes and that any attempt to guide job growth would be far-fetched at best and inappropriate at worst. " We're not doing an activist (population) projection, "  said Rentschler.  " On the other hand, we're doing an activist projection on where we want people to reside. That is true. " Some cities, especially small ones, may not take kindly to an effort that implicitly links them with the region ' s major centers, no matter how light a city's burden may be. " Some small cities that have a RHNA number that ' s less than double-digits will somehow hit the roof that this is just unfair, "  said Rentschler.  " For some folks that just want to be left alone, I don ' t think they ' re going to be so enamored of this process. " Others worry that places appropriate for residential growth today may not be appropriate in 25 years. In fact, by then some places might not even be places anymore. That ' s because the inexorable emergence of climate change and especially sea-level rise could make some low-lying parts of the Bay Area uninhabitable. In fact, a great deal of the developed land ringing the bay is landfill, built up scarcely higher than the current sea level. Plan Bay Area must, they say, account for adaptation as well as mitigation. " We ' re going to have to deal with the impacts of the emissions that are already in the atmosphere, "  said Will Travis, executive director of the Bay Conservation and Development Commission.  " We need to be doing two things at once: Trying to avoid the unmanageable by reducing greenhouse gases and manage the unavoidable by adapting to the impacts of climate change. " Travis said that some of the area ' s most prominent areas are threatened, including downtown San Francisco. Meanwhile, Reyes of the Greenbelt Alliance said that she was concerned about the 3% of household growth that is projected for greenfields and not infill locations. The crucial piece that the IVF intentionally does not yet account for is the transportation connections that will, planners hope, enable new and existing residents to get around and among these new population nodes without despoiling the atmosphere as much as residents currently do. " We hope the final plan will do more to affect land use patterns, and we just haven ' t started to change the transportation investment and policies, "  said Hobson.  " We have to know what those distributions are like so that we plan for the transportation scenarios to match up with those. " Contacts & Resources One Bay Area www.onebayarea.org Jeff Hobson, Deputy Director ,  TransForm, (510) 740.3150 Jake Mackenzie, Vice Mayor, City of Rohnert Park, (707) 588-2226 Stephanie Reyes ,  Policy Director ,  Greenbelt Alliance, (415) 543-6771 Randy Rentschler, Director  of  Legislation and Public Affairs ,  Metropolitan Transportation Commission/ Bay Area Toll Authority, ( 510) 817-5700 Will Travis, Executive Director, San Francisco Bay Conservation and Development Commission,  (415) 352-3600 Scott Zengel ,  Vice President, Bay Area Family of Funds ,  Bay Area Council, (415) 946-8716

Thanks to the recession and various iterations of the dot-com boom and bust, Silicon Valley has a large, stagnant pool of empty office and light industrial space. The same region is woefully underbuilt with housing. Unsurprisingly, homebuilders are making inroads into the underused office parks and industrial sites in Santa Clara County. One result of this trend could be described as a new form of land banking. Produce growers and dairy farmers have traditionally relied on home builders to help them cash out on the value of their land holdings. When the developers come knocking, the farmers take the money and set up business anew in the next valley. Now it appears that high-tech businesses that established offices on prime real estate years ago are learning comparable skills in the art of land-banking, by selling off surplus acreage--or even their entire campuses--for a "higher and better" use. In the city of Santa Clara, Danville-based Trumark Homes says it plans to tear down 141,000 square feet of office/R&D space on an eight-acre parcel in the city of Santa Clara, replacing it with residential units. The site was formerly owned by Extreme Networks, an Ethernet network company, which continues to operate on a neighboring eight-acre campus. Trumark plans to build 112 townhouses and 42 single-family homes on the former high-tech/light-industrial site, which is located near Caltrain's Lawrence Expressway station and an existing residential neighborhood. Extreme Networks, meanwhile, will reportedly continue to operate in a contiguous eight-acre parcel, although the company has allowed the homebuilder to rezone the entire Ethernet property for residential development, according to Trumark v.p.Arden Hearing. Earlier this year, Santa Clara City Council unanimously approved the change to the city's general plan, allowing the housing to go forward on land formerly zoned for office and light-industrial uses. Resmark Equity Partners, a Los Angeles-based residential investment advisor, is a financial partner in the project. Trumark is notable among local developers for targeting infill home building opportunities in Silicon Valley, where the value of commercially zoned land has slumped. Several of the projects are located near existing commuter-rail corridors, allowing the developer to tout the projects as "transit oriented."  An analogous project is a homebuilder's plan to build 89 single-family (i.e. detached) homes in South San Jose's Almaden Valley district on what had been a 16-acre industrial park. The homebuilder says it plans to demolish a 123,000-square-foot office building and a 55,000-square-foot industrial structure currently on the site.  Trumark has similar plans to build on industrial or commercial land in San Jose, where it plans to build 96 townhomes in the city's Berryessa district. Known as North Capitol Villas, the San Jose project is within walking distance of the Santa Clara Valley Transportation Authority (VTA) light rail, as well as an existing elementary school. The same homebuilder is reportedly buying 300 acres in Sunnyland.  --Morris Newman

A State Lands Commission policy prohibiting development seaward of the most landward historical position of the mean high tide line was an invalid underground regulation because it was not promulgated as a regulation pursuant to the Administrative Procedures Act, the Third District Court of Appeal has ruled. Contrary to the commission's contention, its policy was not exempt from promulgation under the Administrative Procedures Act (APA) because it did not fit within the "only legally tenable interpretation of a provision of law" exemption. In fact, the court held that the policy was not the only tenable interpretation because the regulation did not account for fluctuations in high tide that fall outside of the historical range. Establishment of the mean high tide line is crucial to beachfront property owners, because the state owns all lands between the low-water mark and the ordinary high-water mark. Those are tidelands that the State Lands Commission holds in trust for the public. The commission's policy, wrote Justice George Nicholson, "is potentially both overinclusive, prohibiting development on land that does not now and may never belong to the state, and underinclusive, failing to prohibit development on land that may become state land in the future." The decision could have implications for coastal development and for public beach access, but it appears unlikely that the ruling will result in a substantial loosening of development regulations.  The court's decision came in a case brought by Thomas and Nancy Bollay. They own a beachfront parcel in unincorporated Santa Barbara County near Carpinteria. Their parcel extends landward from the mean high tide line to rocks that protect a railroad right-of-way on the landward side of the parcel. The Bollays in 1999 filed an application with the county for permission to build a single-family residence on the parcel. The county in turn contacted the commission regarding whether the proposed project would encroach on state tidelands. The commission responded that the proposed project could encroach on state tidelands and, thus, objected to the project. In 2003, the Bollays submitted a survey to the commission. The survey identified the location of the mean high tide line, which is also called the ordinary high-water mark, and the Bollays attempted to show that their house would not encroach on this mark. This mark is determined by averaging the height of the high tides over approximately 19 years. The commission rejected the survey on the grounds the mean high tide had changed over the years, and cited surveys conducted in 1956 and 1964 as evidence that the entire beach seaward of the railroad right-of-way was seaward of the mean high tide line. In 2004, the county commenced an investigation into whether it should condemn the Bollays' parcel and seven others along the beach for public purposes. For the county to proceed, the State Lands Commission would have to establish the mean high tide line on the beach. However, the commission did not determine the existing mean high tide line. Instead, the commission issued a report that referred only to the 1964 survey, and which concluded that "it seems unlikely that any of the parcels could be developed in a manner that complied with Coastal Act policies or that conformed to the State Lands Commission's policy that new development be sited landward of the most landward location of the mean high tide line." (The italicized language is the policy that the Bollays challenged as an underground regulation.) The Bollays first challenged the policy before the Office of Administrative Law (OAL). The OAL determined the policy was a regulation, but did not agree with the Bollays that the regulation was illegal. The OAL determined the policy was exempt from the APA rules requiring a certain process for promulgation of regulations because, the OAL concluded, the policy was the only legally tenable interpretation of the law governing the commission's activities. The Bollays then sued in Sacramento County Superior Court, where Judge Lloyd Connelly considered only the question of whether the exemption to the promulgation rules applied. He upheld the OAL's determination that the exemption applied. The Bollays appealed. The unanimous three-judge panel of the Third District agreed with the commission that the policy constituted a regulation. However, the appellate court reversed both the commission's determination and the trial court's ruling as to whether an exemption to the promulgation rules applied.  "Simply put, the Lands Commission's policy is not the only legally tenable interpretation of law because it potentially ‘protects' the public's interest in land that does not now and may never in the future belong to the state," Justice Nicholson wrote. "Furthermore, the current policy is potentially underinclusive as well because the mean high tide line could move further landward than it has ever been. Thus, a policy that ‘protects' only land that is seaward of the most landward historical mean high tide line does not preserve the public's interest in land that may foreseeably become state tidelands." Thus, the court ruled the Bollays were entitled to the relief sought – a judicial declaration that the commission's policy was invalid because it was not promulgated in accordance with the Administrative Procedures Act.  The Case: Bollay v. California Office of Administrative Law, No. C063268, 193 Cal. App. 4th 103, 2011 Cal. App. LEXIS 225, 2011 DJDAR 3253. Filed March 1, 2011.  The Lawyers:  For Bollay: Bruce S. Flushman and Wendy L. Manley, Wendel, Rosen, Black & Dean, (510) 834-6600. For the state: Christiana Tiedemann and Alice Busching Reynolds, attorney general's office, (510) 622-2100.

Correction Appended While the mission of the National Park System is to preserve natural wonders for the enjoyment of all Americans, a Native American tribe in Northern California is asking to keep a piece of Redwoods National Park for its own purposes.  One of the state's most populous Native American tribes, the Yurok, has recently issued a proposal that would include a transfer of land in Redwood National Park to management by the tribe. The tribe hopes to build a tribal park system that would encompass the Redwood National Park land and several nearby land purchases.  Though rare, transfers of land from the National Park Service and native tribes have taken place at least a half-dozen times in the past 35 years. In California, 314 acres of Death Valley National Park went to the Timbisha Shoshone Tribe in 2000.  The tribe, which has set land acquisition as a centerpiece of the tribal political agenda, is seeking control of the land so that it can generate revenue and exercise sovereign rights over its ancestral territory. The problem, opponents say, is the precedent the land transfer would set for the national park system.  The tribe has drafted federal legislation that would allow the transfer of nearly 1,200 acres of Redwood National Park land in Del Norte County to the tribe's management. The tribe would package the Redwood National Park land together with 1,200 acres of Six Rivers National Forest land; Redding Rock, an offshore landmark currently under management by the Bureau of Land Management as part of the California Coastal National Monument; and some 50,000 acres currently owned by Green Diamond Resource Company. The other purchases are not a part of the draft legislation that would transfer the national park land to the tribe. Tribal Chairman Troy Fletcher maintains that the tribe will continue to allow full public access to the Redwood National Park parcel under a co-management agreement that meets the standards of the National Park Service.  "We would call the land a tribal park, but it would remain within the boundaries of Redwood National Park, and we would manage it in a way compatible with the Redwood General Management Plan," said Fletcher.  Although the land would be transferred to the tribe, Fletcher said that it would be held in trust by the United States. The tribe, however, would create its own management plan and take over management from the National Park service. Fletcher said that the planning process would take place "in a transparent, open process, allowing public comment about the management of the park land." Opponents of the proposal, however, have already perceived a lack of transparency in the tribe's planning process for the Redwood National Park parcel. Public Employees for Environmental Responsibility (PEER), a national alliance of public employees that monitor environmental laws and standards, recently released an email from Destry Jarvis, a lobbyist employed by the tribe, addressed to the National Park Service (NPS). PEER believes that the emails exhibit back room dealing and a conflict of interest, in part because Destry Jarvis is the brother of NPS Director Jonathan Jarvis. Jeff Ruch, executive director of PEER, also worries that the transfer of public lands proposed by the tribe would open the door for similar transfers around the state and the country, risking the protection of public lands and fragile ecosystems.  According to Ruch, an earlier draft of legislation proposing the transfer "was a major gift of public lands and resources for nothing in return. If you adopted a similar kind of approach to other national parks land where tribes had historic and cultural connections, you would dismantle the entire national parks, forests, and refuges systems." Several tribes around the country have entered similar co-management arrangements for former tribal areas with the federal government , the most prominent example in California being the Timbisha Tribe in Death Valley National Park. Ruch, however, argues that the Yurok Tribe's plans require a change of laws that govern National Park land.  The Yurok claim to understand the concerns of opponents, holding public meetings and charrettes with environmental groups and other NGOs. Tribal Chairman Fletcher suggested that the public process has improved the tribe's proposal: "People feel passionately and strongly about park land, so that issue has dominated much of the dialogue that we have had through these meetings. By identifying their interest, they have given the Yurok Tribe information about how we should draft any potential legislation." Just as important as the precedent the actions of the tribe will set for the future, are the past precedents the tribe means to overcome.  According to Thomas Gates, an anthropologist who is a former consultant for the tribe, episodes of displacement and disenfranchisement mark the Yurok Tribe's recent history, contributing to the cause and timing for the tribe's proposal. From the 1860s until the Hoopa-Yurok Settlement Act of 1988, the tribe was forced to occupy the nearby Hoopa reservation. The Yurok narrowly missed gaining the national park land currently in question as part of the Hoopa-Yurok Settlement Act, which drew the current boundaries of the Yurok Reservation but dropped the Redwood National Park land before Congressional approval.  Moreover, the tribe has little control over most of the land that was set aside for their reservation.  According to Gates, the Yurok Reservation totals about 57,000 acres, but the tribe only owns about 15 percent of that 57,000 acres either as fee lands (which means the tribe pays taxes on the lands to the state) or land held in trust on behalf of the Yurok Tribe by the United States government. A timber company, Green Diamond Resource Company, owns 65 percent of the remaining land on the reservation. Therefore, the tribe's land acquisition plans have potential as a sustainable economic driver for the tribe.  "The Yuroks had upwards of 60 percent unemployment prior to the economic downturn," said Gates. "Here is one of the biggest employers in the region, and the Yurok want more employment in the park." Not all groups interested in preserving national park land have spoken out to oppose the proposal. Ron Tipton, the executive director of the National Parks Conservation Association, cites the Yurok Tribe's good record of conservation, leading efforts to restore condor and salmon habitat in the North State. Tipton makes it clear, however, that before his organization will take a stand on the proposal, he wants to see the details of the co-management arrangement between the National Park Service and the tribe.   "We want to know exactly to what standards they intend to manage and what ability the National Park Service will have to be a partner in assuring that the tribal park concept articulated by the legislation is adhered to for the long term," said Tipton.  Tipton acknowledges that past examples of land transfers like this have had mixed results. But he believes that the good standing of the Yurok Tribe in the conservation community indicates that tribe has conservation-minded intentions for the national park land and can provide competent and conscientious management. Jarvis is unequivocal about the intentions of the tribe.  "The National Park land would not change in any way, except possibly for the better, if transferred to the tribe. The tribe would have much more concentrated interest in the condition and quality of the land and the visitor experience there than the National Park Service does," adding that "The tribe does not plan to cut any trees, and they are willing to specify in the language of the legislation." The Yurok Tribe does not currently have a timetable for the draft legislation to appear before Congress, but the tribe is continuing to hold public meetings in the North State and with members of Congress in Washington D.C. A tribal representative informed CP&DR that the draft legislation proposing the land transfer will soon appear on the tribe's website.  Rep. Mike Thompson, a Democrat from California's First Congressional District, which includes the Yurok Reservation, must introduce the draft legislation to Congress before the land transfer has a chance to become reality.  In a statement about the project, Thompson said, "The Yurok tribe has been great to work with but there remains more work to do before any legislation will be ready to be introduced." Contacts Matt Mais, Yurok Tribe Public Relations Manager, (707) 482-1350 Jeff Ruch, Executive Director, Public Employees for Environmental Responsibility , (202) 265-7337 Thomas Gates, Cultural Resources Program Manager, North State Resources, (916) 956-9048;  Ron Tipton, Senior Vice President of Policy, National Parks Conservation Association, (202) 223-6722 T. Destry Jarvis, President, Outdoor Recreation & Park Service, (540) 338-6970 Editor's Note: A previous version of this story described the land transfer as "unprecedented." This estimation was erroneous and based on incomplete information. CP&DR regrets the error.

In Triumph of the City, Ed Glaeser has written a love letter to his lifelong object of study, the global metropoles in which a majority of the world's population now resides. When planned and managed well, cities exemplify the best of civilization. The subtitle of the book, "How Our Greatest Invention Makes Us Richer, Smarter, Greener, Healthier, and Happier," sounds a bit like the sales pitch in an infomercial, but Glaeser's enthusiasm for cities is sincere and infectious. To be precise, the title of the book refers to the triumph of the city, as opposed to all cities or any city in particular. Industrial cities in America, for example, are dead, and this book does not argue for their revival. Whereas some might argue that the ability to conduct many forms of business from virtually anywhere made possible by modern communications have rendered the modern city less relevant, Glaeser maintains that the riches to be gained from agglomeration in the postindustrial urban economy have only begun to be mined. In fact, his is a deeply humanist book, with the "triumph" referring to the heights of invention and creativity achieved when people cluster together. Glaeser conceives of cities first and foremost as consisting of people and connections, and secondarily of places and buildings. Predictable though the comparison may be, it's true nonetheless: Glaeser is Jane Jacobs with a pocket square and, importantly, a spreadsheet. Triumph of the City adds crucial data and analysis to the story that Jacobs first told decades ago, when Glaeser himself was likely toddling about the parks and sidewalks of his native Manhattan. The Jacobs book that he most embraces is not Death and Life of Great American Cities but rather her lesser known but equally compelling Economy of Cities. Glaeser draws on anecdotes of urban success and failure from Manhattan to Mumbai. But it is the abundance of statistical comparisons in Triumph of the City that serve as the real basis for understanding trends and correlations among variables – such as density, education, wealth, and even climate – that one might not normally associate with one another but that, he claims, bear heavily on a city's wealth and success. Consider, for example, the following: •In the average U.S. county with less than one person per acre, 15.8 percent of adults have college degrees. In the average county with more than two people per acre, 30.6 percent of adults have college degrees. •Second only to January temperature, education is the most reliable predictor of urban growth, especially among older cities. •One of his most counterintuitive observations comes early on, in the context of a lengthy discussion about housing values, incomes, and transit accessibility: •When American cities have built new rapid-transit stops over the last thirty years, poverty rates have generally increased near those stops. This doesn't mean, however, that mass transit was making people poor. Rather, poor people value being able to get around without a car and move near the stops. Whether the increase in poverty rates around new rapid transit stops is a temporary phase in the evolution of urban neighborhoods en route to full-scale gentrification, Glaeser does not say. If true, however, this observation upends one of the long-held assumptions in the planning profession about greater accessibility and increased property values—that one will automatically and instantly lead to the other. Perhaps even more surprising is Glaeser's invective against the modern environmental movement. Under the guise of "preservation," environmentalists have imposed strict controls on development in coastal regions that are inherently green by virtue of their mild year-round climate. High median home prices in places such as Santa Clara County are not the inevitable outcome of market forces, but instead reflect a long-term disruption in new supply. Regulatory barriers, which empower opponents of new development, have in effect shunted population growth to areas of the country with extreme weather, such as Phoenix, Las Vegas, and Houston, where the need for heating or air conditioning virtually guarantees a higher per-capita energy consumption. If the environmentalists in California were truly green, they would embrace more development in their own neighborhoods. Glaeser saves special scorn for the California Environmental Quality Act (CEQA), pointing out that it is prejudicial against new development, since it only considers the impacts of a given project against a "no-build" alternative. This is unrealistic, Glaeser points out, because new growth pressures demand a release valve; if denied in one place, development will ultimately pop up elsewhere in a more receptive city or region. Because the natural tendency for people is to agglomerate, any policy that discourages agglomeration under the guise of "preservation" is necessarily self-defeating and an inducement to even further destruction of the environment via greenfield development. For urban infill projects, CEQA's point of reference for assessing greenhouse gas impacts, for example, should therefore be not a "no-build" alternative, but an alternate scenario in which the same project is built in a car-dependent, less temperate environment. Such a scenario would be equally hypothetical—yet more reflective of the real world writ large. Paris offers a cautionary tale of preservationism taken to an extreme, with the city's official building height limits making the center city unaffordable to all except the wealthy. Even the French have begun to debate whether Paris is a "ville-musée," or city-museum, prized for its Hausmannian architecture and cultural pleasures but lacking in dynamism or innovation. The fixation on historic preservation attracts millions of tourists each year while stymieing the city's ability to accommodate substantial new and permanent growth. As Glaeser writes, "cities aren't structures; cities are people." For Glaeser, the ability of urban centers to grow "up" and increase densities over time is a key driver of the agglomeration economy, whereby the physical proximity of people to one another allows for the dissemination of new ideas, discovery of individual talents, creation of new industries, capital formation and wealth, which in turn supports the cultural amenities that define "quality of life." These amenities draw even more people, particularly the wealthy, creating a virtuous circle of growth and prosperity.* It's worth noting that the one "amenity" that Glaeser values above all others is education. That's why many of Glaeser's observations owe an intellectual debt to the seminal work of Jane Jacobs – but only partially. Jacobs' bid to preserve Washington Square Park and her beloved Greenwich Village from Moses' wrecking ball was ultimately successful, but in the long term, Glaeser also sees the current unaffordability of this area as a distinct part of Jacobs' legacy. Once a working-class neighborhood, Greenwich Village now boasts some of the most expensive real estate in the country. As Glaeser tells the narrative, its transformation into a wealthy enclave is directly tied to the low-/mid-rise architecture of its townhouses and tenements. Without adequate new supply, prices inevitably go up. This may be part of the story, but Glaeser unfairly criticizes Jacobs for supposedly misunderstanding the long-term economic effect of her own preservationist stance. In fact, Jacobs did not oppose the gradual replacement of older buildings with newer ones; she simply favored retaining some older buildings as part of a neighborhood's real estate inventory because their more affordable rents provide incubator space for small businesses and entrepreneurs. Jacobs' fondness for old buildings is supported by a rationale far more nuanced than the mentality of civic leaders in Paris, many of whom oppose even the slightest alteration to the scale and aesthetic of the historic urban core. Toward the end of the book, the personal stakes of Glaeser's interest in the issue of affordability become clearer as he grapples with his own ambivalence as an urban economist who has decamped to the suburbs in search of cheaper housing and better schools than the nearby cities of Boston or Cambridge can provide. Instead of disparaging McMansionites, urban planners should understand that, for most middle-income families, the allure of suburbia is grounded in rational economic decisions. Compared to urban living, it simply offers more bang for the buck. On the subject of amenities, Glaeser is somewhere along the continuum between Richard Florida and Joel Kotkin. Cities should not tailor their policies to the so-called "creative class," nor should they ignore the important role of amenities in attracting and retaining talent. In fact, if a city has a high median income relative to local housing prices, it indicates that additional pay is needed to draw qualified labor. This is a sign of urban failure rather than success. In cities with a high quality of life, workers will by contrast accept lower salaries because the desirability of the location is itself a form of compensation. To level the playing field and make cities more competitive, Glaeser's policy prescriptions are an amalgam of both left and right: streamline the existing environmental review process with a flat mitigation fee on new development; eliminate city income taxes; impose congestion charging fees on urban drivers as is done in Singapore and London; end the quasi-monopoly of the public school system through vouchers. Ultimately, many of Glaeser's policy prescriptions hew towards the free market. And why shouldn't they? Glaeser argues convincingly that over 4,000 years cities – or, rather, the people who constitute their life force – have performed best when they welcome new arrivals and embrace transformation, rather than regulating new growth out of existence or clinging to failed policies of the past. And that's what makes Glaeser's contribution to the discourse on cities so valuable. He takes great pains not to come off as a heartless free-market economist, instead celebrating the artistry, poetry, humanity and, yes, freedom that constitute the true triumph of the city. --Adam Christian

An appellate court has upheld the City of Berkeley's application of the density bonus law and the California Environmental Quality Act exemption for an infill project. The decision means that a 98-unit, mixed-use affordable housing or senior affordable housing project (depending on which the developer chooses) in Berkeley can move forward. The case illustrates the broad reach of the density bonus law for projects that fit within its requirements. Combined with the earlier ruling in Friends of Lagoon Valley v. City of Vacaville, (2007) 154 Cal.App.4th 807 (see CP&DR Legal Digest, October 2007 ), the case also demonstrates the reluctance of the courts to narrowly interpret the provisions of the density bonus statute. The ruling is also the first published decision upholding a city's use of the Class 32 categorical exemption from the California Environmental Quality Act (CEQA) for an urban infill project.   In 2007, the developer (RB Tech Center, Memar Properties, CityCentric Investments and Ashby Arts Associates) approached the city with two alternatives for a 0.79-acre site at San Pablo and Ashby avenues: a mixed-use affordable housing project or a senior affordable housing project. Both projects would have retail on the ground floor and 98 units of housing on the five floors above. The city reviewed both projects and determined that the developer was entitled to certain density bonuses for either project. Also, the city determined that both projects were exempt from environmental review under the Class 32 categorical infill exemption (14 Cal. Code of Regulations § 15332).  Ultimately, the city's zoning adjustments board approved a use permit allowing the developer to build either project. Berkeley resident Stephen Wollmer appealed, but the Berkeley City Council denied the appeal last year. Wollmer sued, and Alameda County Superior Court Judge Frank Roesch found in favor of the city. Wollmer appealed. In its decision, the First District Court of Appeal began by addressing the application of the density bonus law to the developer's projects. Wollmer raised three novel arguments: "(1) condition 68 of the use permit allowed the developers to receive Section 8 subsidies for density-bonus-qualifying units, thereby exceeding the maximum ‘affordable rent' established in Health and Safety Code § 50053; (2) the city's approval of amenities should not have been considered when deciding what standards should be waived to accommodate the project; and (3) the city improperly calculated the project's density bonus." The appellate court found for the city on all issues. Section 8 Subsidies and the Density Bonus Law The crux of the project opponent's first argument was that the total amount of rent that the developer would receive from very low-income tenants qualifying for Section 8 subsidies would exceed "affordable rent," and, therefore, the project could not qualify for a density bonus.  Government Code § 65915 requires that " ents for the lower income density bonus units shall be set at an affordable rent as defined in § 50053 of the Health and Safety Code." Section 8 subsidies are provided by the federal government to cover the difference between the fair market rental value of a property and the amount that very low-income tenants can afford. Landlords who enter into Section 8 agreements receive one check from the tenant and the balance from the government.  In this case, one of the conditions of approval for the projects (condition 68) allows the rent received under Section 8 as the maximum allowable rent for the very low-income rental units. In addition to setting the cap for very low-income residents at the level permitted under Section 8, the city also granted the developer the very low-income density bonus. Wollmer argued that because Section 8 results in the developer/landlord receiving the fair market rental value, albeit not from the tenant, the rent would exceed "affordable rent" as defined in Health and Safety Code § 50053. The court disagreed. The court found that the Health and Safety Code § 50098 defined rent as "the charges paid by the persons and families of low or moderate income for occupancy in a housing development." The Health and Safety Code regulations also specifically state that "affordable rent" includes "rent charged as a tenant contribution under the provisions of Section 8" (25 Cal. Code of Regulations § 6922, subdivision (d)). Therefore, according to the court, rent received under Section 8 qualifies as affordable rent. The relevant inquiry is what the tenant pays, not what the landlord receives in total from the tenant and other sources. In light of the statutes and regulations, the court held that the city lawfully granted a density bonus for very low-income units that allowed receipt of rent under the Section 8 program. Amenities in its Density Bonus Determination In addition to requiring density bonuses, Government Code § 65915 requires that the local agency grant waivers or reductions from development standards that would otherwise preclude the construction of a project that meets the density bonus statute criteria. In this case, the city granted waivers of height and setback requirements in order to accommodate the development envisioned by developer, which included amenities such as a courtyard and higher ceilings. Petitioners argued that these amenities should not have been included as part of the "development" in order to obtain the waiver of development standards. According to the appellate court, the narrow interpretation urged by Wollmer was incorrect and went against the spirit of the density bonus law. The city properly included the amenities as part of the development in waiving some of its development standards.  "Had the city failed to grant the waiver and variances, such action would have had ‘the effect of physically precluding the construction of a development' meeting the criteria of the density bonus law," Justice Timothy Reardon wrote for the unanimous three-judge appellate panel.  Calculation of the Project's Density Bonus  In calculating density bonuses, the local agency uses the density allowed under the zoning code, unless the zoning code is inconsistent with the general plan, in which case the maximum general plan density is used. In this case, the city used the zoning code to establish the density baseline. The opponent asserted that Berkeley's zoning code is inconsistent with the general plan, and, thus, the city should have used the general plan (which has a lower density). However, the court pointed out that the general plan specifically states that the zoning code is consistent and that the more specific provisions in the zoning code govern. Therefore, the court held that the city properly calculated the density bonus. Infill Exemption After upholding the city's application of the density bonus law, the court addressed the opponent's CEQA argument. This also involved a novel argument concerning the interplay between the density bonus law and the CEQA infill exemption. Wollmer contended that the infill exemption did not apply because the city waived some of the development standards, resulting in a project that is inconsistent with the general plan and zoning code. The infill exemption requires consistency. As Wollmer noted, without the waivers or reductions granted under the density bonus law, a variance would have been required for the project and the infill exemption would not have applied. For purposes of this argument, the relevant portion of the CEQA Guidelines say: "The project is consistent with the applicable general plan designations and policies and all applicable zoning designations and regulations." The court reasoned that the development standards waived under the density bonus law were not applicable to the project for two reasons: 1) the density bonus law authorized the waiver, and 2) the city's code requires the city to grant density bonuses upon a proper application. Therefore, the court held that environmental review under CEQA was not required because the infill exemption applied. The Case: Wollmer v. City of Berkeley, No. A128121, 2011 DJDAR 4658. Filed March 11, 2011. Ordered published March 30, 2011. The Lawyers: For Wollmer: Stephen Wollmer in pro. per. For the city: Laura McKinney, city attorney's office, (510) 981-6998. For the developers: Andrew Sabey,  Cox, Castle & Nicholson, (415) 392-4200.