Search Results

The Santa Ynez Valley in Southern California brands itself as bucolic wine country, a mix between grape-covered hills and Old West charm. The Chamber of Commerce touts the hospitality and diversity of the valley's few thousand residents, but one thing that isn't mentioned in the Chamber's materials is the Chumash Casino Resort, a business run by the government of the Santa Ynez Band of Chumash Indians that made a reported $366 million in revenue in 2008. The government of the Tribe, which claims 249 on-reservation members, is attempting to acquire relatively autonomous federal trust status for a greater proportion of the Tribe's historic land. The Tribe's representatives believe that they have the finances and a recent U.S. Supreme Court decision in their favor. The local government and state officials, however, have allied themselves against the proposal for fear that added Tribal land development may upset the power balance in the valley. The Santa Ynez Band of Chumash Indians have been given claim to 15,000 acres of Tribal Consolidation Area – that is, title to land claims too small or of too obscure title in their individualities to be apportioned to any individual Tribal member. If the Tribe acquires full fee-simple title to property in this area, it can apply to have it taken into trust. Within the Tribal Consolidation Area, the Tribal government has purchased and is seeking trust status for a 1400-acre property on Highway 154 near Solvang. The property is a subdevelopment of the former Fess Parker vineyards called "Camp 4," currently zoned for agriculture and partly planted in grape vines. (See http://www.kitawines.com/vineyard/.) The Tribe's announced plan for the land is to develop housing for members. Many non-Native residents and state and county officials, however, are worried that the land could be used for economic development projects outside the reach of taxation or regulation. (Local opponents' sites include http://polosyv.org and http://www.syvconcernedcitizens.com/.) A long-disputed claim Tribal developments can avoid state and local regulations because tribes are outside states' jurisdiction. Native American tribes are recognized by the federal government as separate sovereigns, often with treaty rights recognized and signed by various U.S. Presidents over the years. The Santa Ynez Reservation was established in 1901 and has been the site and focus of litigation ever since. (For an introduction to prior Chumash history see http://www.santaynezchumash.org/history.html.) Revenues from the Chumash-owned casino are a particular thorn in the side for local non-Indians who perceive the casino as both a competitor for tourist dollars and a magnet for crime. A California compact with the Indian reservations within the state to regulate tribal gaming was approved by the Bureau of Indian Affairs in 2000. It provides the framework to define what kinds of gaming are allowed on reservations such as the Chumash's and how the revenues may be used. The casino business has been good for the Chumash, seeing as their reservation is only 125 miles from Los Angeles. The Tribe has been able to purchase land from Santa Barbara County and various landowners that had fallen out of Tribal authority 80 years ago. Now the Tribe is hoping to use either an administrative BIA process or a Congressional bill introduced on its behalf (HR 3313) to turn this purchased land into Federal land held in trust for the Tribe. Under trust status, the federal government would hold legal title, unattachable to tribal mortgage or debt, explicitly for the benefit of the entire Tribe and outside the state regulatory framework. "Trust" land has been held to be more purely "Indian Country" than land held by a tribe in fee simple. So state officials are concerned that if the land becomes trust land they will no longer be able to keep the Tribe from using it however it wishes – possibly building high-rise or high-density apartments against local zoning ordinances, or even constructing casino expansions. Although HR 3313 explicitly excludes gaming from the acres at issue, the tribe's opponents are worried that this express statement could be overridden by later law once the land is out of state hands. Andi Culbertson, a Santa Ynez Valley resident and land use lawyer, said there is "hardly a necessity for housing" for those Tribal members who live in the Valley. (How many are full-time residents is disputed.) Culbertson expresses concern that once the land is solely in Tribal hands, "they can build anything." In order to to stave off this particular eventuality, Santa Barbara County has chosen not to negotiate release from local to federal control of the 1400-acre plot at issue – confident that HR 3313 will not pass Congress. The Chumash Tribe has proposed to make payments to the state and county in lieu of taxes. (Tribes do not pay taxes to states, as sovereigns of equal standing.) The Tribe has also offered to limit its tribal sovereignty by allowing County participation in the planning process. "In a perfect world, tribes and their counties would work out some agreed-upon system similar to currently existing county LAFCO processes," said Sam Cohen, the Tribal spokesman and a lawyer for the Santa Ynez Band. According to him, such a system would allow for "counties to get the early warning they desire and tribes and counties could reach agreement as to some of the jurisdictional conflicts." However, Santa Barbara County has successfully created an impasse where Congress, at the suggestion of the District's Rep. Lois Capps (D-Santa Barbara) is waiting to see a local agreement that the County is unwilling to undertake. (The sponsor of HR 3313 is not Capps, but Rep. Doug LaMalfa, R-Richvale. See http://lat.ms/1nJcrN1.) At the same time, the office of the California Attorney General has taken a generally negative view of the fee-to-trust process, issuing comments to be attached to public records of various California tribes' fee-to-trust applications that attack "the very foundation of the federal statutes authorizing land in trust acquisitions, fostering discord and misunderstanding between tribal Nations and the State of California" in the words of Robert Smith, chair of the Pala Band of Mission Indians. The Attorney General's office points to the tribes' lack of interest in agreeing to waivers that the AG has sought. These would provide that fee-to-trust lands would "only serve on-reservation uses and that the Tribe waive its sovereign immunity to allow for enforcement of that condition." Such commitments would presumably make for neighborliness but are not legal requirements for tribal action. The opposition to the Chumash plans comes from a variety of sources, but focuses on a few key issues summed up by the California Coastal Protection Network. The Network notes that although 100% of the 111 California fee-to-trust applications to the Pacific Region of the Bureau of Indian Affairs from 2001-2011 were approved, those each averaged under 100 acres, far smaller than the Chumash Tribe's application for 1,400 acres. The Coastal Protection Network also decries the vagueness of the Tribe's offered Cooperative Agreement, saying that it "did not contain an explicit project description for uses on the 1400 acres, but indicated that it would include housing and unspecified ‘economic development'." By the Network's reasoning, a larger project such as Camp 4 would call for disclosure of more complex plans than a hundred-acre plot in a less economically valuable part of California. But the Tribe is reading the guidelines for fee-to-trust applications as more permissive than what opponents would like to see. Tribal land is not subject to the California Environmental Quality Act (CEQA). While this would seemingly allow for massive development opportunities, in practice tribal authorities follow the spirit, if not the letter, of local environmental quality acts. This is partly because tribes are still subject to federal environmental standards. Also because tribes, which often need to make the best of reservation areas that are only a fraction of their original suzerainty, have a political interest in sustaining the land they own. The trend of tribal action generally aside, Culbertson notes that "It's a developer's fondest dream to be able to escape all state regulations," and the Camp 4 development would do precisely that. Culbertson emphasizes that the county's tax base and regulatory control would be weakened by the fee-to-trust transfer. Santa Barbara County is currently suing the Tribe over a breach of the Williamson Act (an agricultural property tax break for conservation purposes), claiming that the Tribe never filed the application on which it has been relying for tax breaks, instead relying on the former owners' application. Cohen, representing the tribe, claims that the suit is largely procedural and says he believes the assertion is largely "that we haven't done it fast enough." (See http://bit.ly/1pl6plF.) The comment process on the Tribe's Environmental Assessment for the fee-to-trust plan, filed with the BIA under the federal National Environmental Policy Act (NEPA), closed on July 14. (See http://www.chumashea.com/.) A precedent for others? While the claims ultimately come down to mutual distrust and glares across the state/federal divide, recent changes in state and federal law raise the stakes for the Santa Ynez Valley dispute and may turn its outcome into a precedent. California's worsening drought has exacerbated water ownership issues throughout the state's water basins. HR 3313, the Congressional bill to authorize the land's transfer to trust status, attempts to bifurcate the tribe's sovereignty claim from its water issues. It explicitly would not "affect any water right of the Tribe in existence before the date of the enactment of this Act." (For the text and status see https://beta.congress.gov/bill/113th-congress/house-bill/3313.) Despite this legislative buck-passing, legal scholars believe that because the Reservation was created in 1891 – and because the creation of the Reservation reserved rights inherent in the Tribe since pre-contact – the Chumash Tribe has a right to water in a first-in-time system dating back to at least the 19th century and perhaps time immemorial. Although this right is ostensibly only to Zanja de Cota Creek, the creek has since dried up and its connected groundwater can be employed by the Tribe to fulfill the purposes of an Indian reservation, according to a related Ninth Circuit case concerning the Pyramid Lake Paiute Tribe in Nevada, United States v. Orr Water Ditch Co. , 42 ELR 20252 (9th Cir., 2001). In a 2013 article studying the Santa Ynez Tribe's case in the West Northwest Journal of Environmental Law & Policy , Joanna "Joey" Meldrum (then a new UC-Hastings law graduate; now a land use attorney with Holland & Knight) reflected a widely held view in arguing that, under locally applicable law, "the Tribe should have the right to withdraw as much groundwater as is necessary for the Reservation and its people to survive and prosper," with the Tribe able to receive much judicial deference. (See http://bit.ly/1nMEAV6.) However, Cohen has downplayed these rights on land outside the reservation proper, saying the priority date on newly-minted Trust land will be "the date that the land goes into trust. Our 1400-acre parcel has a priority date of whenever the land is turned in to the federal government," presumably when the Fee-to-Trust application is approved and title is quieted in late 2014. The Tribe's dormant opportunity to control water in the Santa Ynez Valley only allows for on-reservation water usage, but it still may give the Tribe the opportunity to control further development, an opportunity that state and local officials perhaps fear. The state of California's concerns over losing water rights and control over development may be sharpened by a May 2014 U.S. Supreme Court decision, Michigan vs. Bay Mills Indian Community , in which the Court held 5-4 that the state of Michigan could not issue an injunction against Tribal activity (in the Bay Mills case, the operation of a gaming facility) on non-Tribal land. (See http://bit.ly/1nOfB2c for a SCOTUSBlog analysis.) This holding, which may yet be narrowed by further holdings, would seem to allow Tribal governments to countermand any orders state courts might issue to cease development, even on non-Tribal land. The chance to build first and make agreements with the state later would be an enormous opportunity for tribes to operate on an equal footing with states and may even – if Bay Mills is held broadly – reverse some of the many state encroachments on tribal sovereignty that have marked the history of Indian country. The current standoff between the Santa Ynez Band of Chumash Indians and the non-Native regulatory powers is, in one sense, a local power struggle determining what the base of economic power will be in this hilly Pacific wine country. In another sense, the outcome will determine how much strength tribes will have throughout California in proposing new developments, including housing and businesses. If the Chumash are able to successfully maintain their rights to land and water they may be able to exert greater control in the Valley and set a precedent allowing for tribal sovereignty-based engines of economic development to sprout throughout rural California. Tribal claims to water and to freedom from state judicial interference are looked at – either enthusiastically or skeptically – throughout the state, and threats of litigation loom over the current-day impasse in negotiation. The current power balance in the Santa Ynez Valley in particular, and in corresponding situations throughout California, has longstanding beneficiaries. Historically disadvantaged groups such as the now-powerful Santa Ynez Band may be looking forward to disrupting those interests through their own avenues of economic growth in the near future. Asher Kohn is a writer and law school graduate based in the Bay Area. He writes about land use and disuse. See www.asherjkohn.com.

The Governor's Office of Planning & Research is a month late in issuing its final recommendation on whether to replace "level of service" as the measurement of significant transportation impacts in transit priority areas under the California Environmental Quality Act. But there's not much mystery: OPR has sent clear signals that it is going to propose replacing LOS with vehicle miles traveled, or VMT. A VMT standard would get California out from under constant use of CEQA to widen roads and facilitate auto travel – a strange environmental outcome if ever there was one – and it would align the CEQA Guidelines with state policy, especially AB 32, the state's greenhouse-gas emissions reduction law, which essentially requires a reduction in overall driving. But it would upend the longstanding practice of traffic engineers in practically every city and county in California. It's hard to know how localities would actually seek to translate a VMT standard into day-to-day practice in reviewing both plans and projects – or whether they would continue to use outside transit areas our outside the CEQA context. SB 743 required OPR to come up with an alternative standard by July 1 – at least for transit priority areas. OPR's December "preliminary evaluation"(see http://www.opr.ca.gov/docs/PreliminaryEvaluationTransportationMetrics.pdf) prominently considered switching over to the "Vehicle Miles Traveled" (VMT) standard, saying travel distances were easier to predict than congestion levels and that mitigation approaches focused on reducing VMT would do more to promote bicycle, foot and mass transit methods of travel. The document also invited discussion of other standards: Automobile Trips Generated, Multi-Modal Level of Service (including LOS ratings for transit, walking and biking), Fuel Use, and Motor Vehicle Hours Traveled. And perhaps most important, the December document suggested that some geographical areas might be under a "presumption of less than significant transportation impact" category if those areas are already well served by transit. All this strikes at the very heart of traffic analysis as it has been conducted in California at least since the passage of the Congestion Management Act in the early ‘90s, a law that more or less requires CEQA analyses to take traffic congestion into account. (http://www.cp-dr.com/articles/node-3404.) Obviously, free-flowing traffic can, under some circumstances, reduce air pollution – meaning that, counter-intuitive as it seems, expanding road capacity can improve environmental conditions. But the truth of the matter is that CEQA analyses rarely make the connection between traffic congestion and any type of environmental harm. Most cities and counties simply adopt some particular LOS standard as a significance threshold that requires an environmental impact report. And the real driver of both time and expense in the typical EIR is the traffic analysis, which hogs financial resources compared to other topics. This, of course, makes all development projects more expensive and time-consuming and sometimes has put infill development at a disadvantage. Maybe most significant is how all the people involved in CEQA project review – traffic modelers most of all – have come to regard CEQA and LOS-based traffic analysis as so intertwined that they can't be separated out. CEQA provides a lot of the leverage that localities in California use to get developers to cough up traffic improvements. After all, if as a planner you frame conditions for an approval so they require a developer to do something as a mitigation under CEQA, the developer and everyone else concerned can be held accountable under a state law that lends itself to easy litigation. The planners and modelers feel like they have a lot of leverage; and the neighbors are confident that you're trying to solve the congestion problem. If you try to require developers to pay for traffic improvements outside the context of CEQA, you have to rely on your own … policy, which can be … changed, and not so easily … litigated. The whole thing makes everybody pretty uncomfortable. But there comes a point in an infill context where LOS no longer makes sense. At its core, the LOS standard drives a congestion analysis that boils down to – oversimplifying here, but not much – "How many cycles of a red light does a typical motorist have to wait through before they clear the intersection?" (Congestion on road segments is also analyzed, but that's not nearly as big a problem.) If your goal is to keep traffic flowing no matter how much traffic there is, you'll try two different types of mitigation measures. First, you'll expand the overall roadway capacity. And then, second, you'll fiddle around the edges as much as possible by adding more left-turn lanes and so forth. And if none of that works, then you'll adopt a statement of overriding consideration, saying you simply can't fix the traffic congestion. And, oddly, that's another CEQA security blanket for a lot of localities in California, because it gives them an "out" under state law that is hard to challenge in court. Letting traffic congestion exist outside the context of CEQA makes a lot of people very uncomfortable. But we are rapidly reaching the point in many California cities where there is simply no way to mitigate your way out of the problem by building more traffic improvements. Traffic congestion is so bad that statements of overriding consideration are becoming more common. So, not surprisingly, a few leading-edge cities are beating the state to the punch by moving away from LOS – San Francisco and San Jose especially. (See http://www.spur.org/blog/2014-06-26/can-new-law-free-cities-car-oriented-development.) More are likely to follow, especially if the state adopts an alternative standard. That doesn't mean that local traffic modelers won't do congestion analysis. There's too much pressure on them to ignore congestion completely. They'll just do it outside the CEQA context. And especially at the plan level, it will be difficult to differentiate between transit priority areas and other locations, as the plans may straddle those boundaries. It'll be an interesting test of the power of non-CEQA conditions of approval to see whether localities can extract congestion improvements from developers outside of CEQA. (After all, this somehow happens in every other state.) The more interesting question may be how localities interpret and implement a VMT approach. You can see this working way better at the plan level than the project level – where you can rejigger the land uses (and maybe create more mixed-use) to drop VMT below a level of significance. But how do you do that at the project level? You run the risk of re-fighting the plan's land uses, something the courts have taken pains to discourage.  More likely, a VMT standard will morph at the local level into something that kind of looks like a multi-modal LOS. In essence, cities will conclude that VMT for a particular project is high because everybody is forced to drive. Unable to solve the congestion problem either, they will seek to reduce both VMT and congestion by getting developers to build or pay for other transportation improvements, especially transit and the pedestrian connections required to connect the project to the transit lines. This won't work everywhere; as SPUR pointed out in the article linked to above, smaller cities and rural areas may still use the LOS standard. And it won't be easy, because a significant increase in transit capacity requires huge capital investments far behind the ability of individual developers to pay and it may require them to commit to long-term operation subsidies, which are hard to enforce.  But with VMT becoming the preferred approach to assessing transportation effects of new projects, we may see transportation planning become more flexible, and more genuinely linked to environmental protection, as it moves away from the special constraints of the CEQA process.

CEQA's future has been in holding patterns across all California's branches of government this summer. But while big things are expected any day in the administrative or judicial branch, CEQA is a sore and sour subject in the Legislature. In a way, this isn't surprising. It's always been difficult to change CEQA in the legislature. Most of the action has always been in the courts – perhaps inevitable for such a litigation-driven law – and through the ever-expanding CEQA Guidelines. But it's an anticlimax given the high hopes that Senate leader Darrell Steinberg, D-Sacramento, and others have placed on possible CEQA reform in the last couple of years. The air went out of CEQA reform efforts last year (see http://www.cp-dr.com/articles/node-3437) and this year has been a year of diminished legislative prospects. In the administrative branch, as Bill Fulton discusses in today's Insight commentary, the Office of Planning and Research (OPR) is nearing completion of an updated alternative to the congestion-based Level of Service (LOS) standard for traffic impact assessments. The new rules, expected to focus on Vehicle Miles Traveled (VMT), may ease the criteria for approving new freestanding and infill construction projects and will certainly shift the tensions that shape project approvals. OPR is also incubating broader revisions to the CEQA Guidelines. See http://www.opr.ca.gov/m_ceqa.php. In the judicial branch, the California Supreme Court has a towering CEQA backlog of seven cases, several of them major: Most recently, on July 9, 2014, the high court agreed to hear an appeal of the March 2014 ruling on the proposed Newhall Ranch development, Center for Biological Diversity v. Department of Fish & Wildlife , S217763. The partially published March decision by the Second District Court of Appeal (No. B245141) included a densely technical unpublished discussion of greenhouse gas (GHG) reduction goals. As discussed previously at http://www.cp-dr.com/articles/node-3505, Thomas Henry and Bao Vu of the Stoel Rives firm wrote a technically careful blog post at http://bit.ly/1hxBDWz comparing standards for GHG reduction that were set in the case to those apparently set by the recent AB 32 scoping plan update, suggesting that the scoping plan might be more lenient. The Miller Starr Regalia blog has more details on the grant of review at http://bit.ly/U9hhYj. Although the issues addressed are major, David Pettit, a senior attorney with the National Resources Defense Council (NRDC) said the case was also "pretty fact-bound," and so "I don't really see the case as being a blockbuster." The court heard oral argument May 28, 2014, in Tuolumne Jobs & Small Business Alliance v. Superior Court , S207173, on whether CEQA review is still required when a local city council or board of supervisors receives signatures on a ballot measure supporting a project and elects to adopt the project as is rather than submit it to a (potentially costly) special election. See http://www.cp-dr.com/articles/node-3506. This is a longstanding unresolved issue, as local government actions are subject to CEQA and initiatives aren't. So the question is, which type of action is the local government taking when adopting initiative language? The court agreed last November to review California Building Industry Association v. Bay Area Air Quality Management District , S213478, otherwise known as the "CEQA in reverse" case, considering whether developers must respond to the potential future effects of environmental hazards on their projects. See http://www.cp-dr.com/articles/node-3460. The extremely significant case of Berkeley Hillside Preservation v. City of Berkeley , S201116, on "unusual circumstances" exceptions to the infill exemption, was accepted for review in May 2012 and still has not gone to oral argument. See http://www.cp-dr.com/articles/node-3314. On July 9, 2014 the same day it accepted the Newhall Ranch case, the court granted review of the Santa Cruz County rodeo case, Citizens for Environmental Responsibility v. 14th District Agricultural Association (Stars of Justice) , S218240. It immediately deferred briefing on the case pending decision of the categorical exemption issue in Berkeley Hillside . See http://www.cp-dr.com/articles/node-3465 on the underlying appellate decision and http://www.courts.ca.gov/documents/ws070714.pdf for the court's account of its action. City of San Diego v. Board of Trustees of CSU , S199557, accepted in April 2012, is also awaiting both argument and decision. The case is discussed briefly at http://www.cp-dr.com/articles/node-3314. Review was granted in January 2014 for Friends of the College of San Mateo Gardens v. San Mateo County Community College District , S214061. For a discussion from the Remy Moose Manley environmental law firm see http://bit.ly/UDTdwW. (Online dockets for all California Supreme Court cases, with links to the underlying appellate decisions, can be found via search by case number at http://appellatecases.courtinfo.ca.gov/search.cfm?dist=0. The Court's pending issues summary, which it replaces weekly, currently includes the court's statement of issues presented in all the above matters except for the rodeo case. See http://www.courts.ca.gov/13648.htm.) Anthony Samson, a former CEQA litigator and now a lobbyist with the California Chamber of Commerce, expressed interest (though not exactly agreement) regarding a news analysis, posted by Erin Coe of Law360, that in March 2013 was already suggesting the California Supreme Court may be frustrated with legislative inaction on CEQA and, in Samson's paraphrase, "appears to be taking it into its own hands based solely on the sheer number of CEQA cases pending before the Supreme Court today." (See http://bit.ly/1qGqKWw and http://bit.ly/1psYWOO.) If anything, the court's CEQA ambition, and the potential significance of its rulings, have only grown since then. Stalemate in the Legislature In the Legislature, on the other hand, meaningful CEQA legislation has slowed since the 2013 resignation of Sen. Michael Rubio, D-Bakersfield, who led major attempts at a CEQA procedural overhaul as chair of the Senate Environmental Quality Committee. (See http://www.cp-dr.com/articles/node-3356.) This year's primary attempt to change CEQA procedure was SB 1451 (http://bit.ly/1p8udwb), to narrow the procedural rights of objectors to projects, principally on what bill proponents called "late hits" – last-minute presentations of comments and evidence. That bill was shelved in early May. Remaining CEQA proposals in this session have more specific focuses, on Native American cultural resources (AB 52) and the Tesla battery factory (SB 1309, though the bill itself has lagged procedurally). Queries to members of the Legislature's CEQA community about next steps or lessons learned after the defeat of SB 1451 got desultory responses over the last several weeks. One senior lobbyist who had dealt with the bill answered, "I don't know what else there is to say about it," and recommended asking someone else. SB 1451 itself has been convincingly dead since it was pulled from a State Senate Judiciary Committee agenda in early May. With Sens. Jerry Hill, D-San Mateo, and Richard Roth, D-Riverside as principal authors, the measure would have tightened procedural rules to bar critics of a project from presenting new grounds for an allegation of noncompliance with CEQA after the close of the public comment period. Exceptions would have applied if there was no public comment period, or if the late-presented grounds previously "were not known and could not have been known with the exercise of reasonable diligence", a phrase borrowed from CEQA Guidelines §15162. (The Senate Environmental Quality and Judiciary committee analyses at http://bit.ly/1ro6ipC and http://bit.ly/1q5CtsB contextualize the bill as the latest in a string of false starts and incremental changes on similar issues.) At a State Senate Environmental Quality Committee hearing April 30, Sen. Hannah-Ruth Jackson of Santa Barbara, an EQ committee member and lawyer who also chairs the Judiciary Committee, questioned thoroughly whether the measure would serve its stated purpose. (See minutes 4:31 to 5:21 on the hearing video at http://senate.ca.gov/vod/20140430_0914_STV2Vid.) Proponents of the measure at the hearing called it a necessary safeguard against "late hit" gamesmanship used to delay projects or gain tactical advantages. Opponents, including environmental and labor lobbyists, suggested the bill might do more to deny a hearing to amateur and underfunded opponents who learn about their rights late in the process than it would do to make experienced players play fair. The sides disagreed on whether SB 1451 duplicated effects from the 2011 case of CREED v. San Diego (discussed by the Abbott & Kindermann firm at http://bit.ly/1lKmi5U). Opponents said CREED already blocked abusive late document dumps; proponents said it only required them to be more clearly presented for review. Sen. Hill said at the hearing that, among opposition groups, only the Center for Biological Diversity (CBD) had been willing to discuss amendments with him. But later in the same discussion, CBD's California climate policy director, Brian Nowicki, said the group opposed the bill fully, having chosen to withdraw a previously proposed technical amendment. At the hearing, speakers and legislators gave the impression of being in sympathy with calls to block manipulation of the system, but some, including Jackson, called the bill too crude an instrument to do it. The bill passed out of EQ to Judiciary that day, but by a 4-2 vote: Jackson and Loni Hancock of Berkeley opposed it while Mark Leno of San Francisco gave a reluctant tiebreaking "yes". Before the bill reached its May 6 Judiciary Committee hearing, the hearing was shown as canceled by author's request. What's left for CEQA in the current session The two remaining prominent CEQA bills, AB 52 and SB 1309, are each designed to have major effects in narrow areas. Sierra Club lobbyist Kathryn Phillips noted last month there is always a chance of a a last-minute gut-and-amend attempt to make last-minute CEQA changes – but for now the proposals that are conventionally in the works look pretty specific: AB 52 would redefine environmental effects to include "a substantial adverse change in the significance of a tribal cultural resource" and would require consultation with a locally affiliated tribe. The bill would allow a resource to include a "cultural landscape" as well as a narrowly defined place such as a grave site. A provision limiting its application to federally recognized tribes has raised questions what effect that may have on unrecognized tribes. See http://bit.ly/1pknpsg. The bill is at http://bit.ly/1khDEro. Legislation could still pass along the lines of SB 1309, by outgoing Sen. Darrell Steinberg, D-Sacramento. In that bill – which itself appears to have missed some procedural deadlines – Steinberg set out generic "spot bill" language describing an intent to smooth a way to environmental approval for the Tesla company's proposed battery production "Gigafactory". (See http://bit.ly/1u0hGI1 for the SB 1309 bill. Governor Jerry Brown has already signed a different bill, SB 2389, that together with a rich meal of Lockheed incentives allows local governments to offer Tesla tax breaks as incentives to build its factory in their areas. See http://lat.ms/1ydtmLj. On prior efforts to court Tesla see http://www.cp-dr.com/articles/node-3508.) Topics to revisit next session That leaves the Legislature waiting for new CEQA ideas, if not eagerly then receptively. In late May the State Senate Environmental Quality and Judiciary Committees even circulated a letter to "CEQA Stakeholders," inviting past participants in CEQA lobbying to submit responses by September 1 – i.e., for the next legislative session. The letter asked open-ended questions about what could be improved in CEQA law. (A copy is at http://www.cp-dr.com/sites/default/files/CEQALetterPrinted.pdf.) Proposals with a strong chance of movement will most likely come from the political right. Environmental and labor advocates don't appear to see any politically realistic amendment that could be to their advantage. Everyone agrees that procedural gaming happens under CEQA but CEQA's defender say the effects of "document dumping" and other surprise tactics are less than business groups claim. David Pettit of the Natural Resources Defense Council (NRDC) said, "I don't think CEQA is broken. So I don't understand why we need to fix it." Told that an environmental advocate had made the comment, Samson at the Chamber of Commerce retorted, "I think that saying CEQA isn't broken is turning a blind eye to reality." Samson said the bill was being used "more and more as a mechanism to stop or otherwise delay projects on grounds completely unrelated to the environment. Anybody who says to the contrary, I think, is wholly misinformed." In last month's conversation, Phillips said the Legislature and staff face an annual weary task of sorting through a welter of CEQA proposals: some politically outrageous, hence not viable, and some densely technical, giving readers the sense that "someone's trying to pull the wool over their eyes." She said past apparent moments of consensus had failed, so that "there's probably no way now to have an intelligent and constructive conversation about CEQA" and from her point of view there were better areas for legislative energy. There have been a few efforts to punch through the CEQA deadlock with piecemeal single-project legislation but those kinds of bills may have a limited future. Bipartisan irritation is evident over bills like SB 1309 for Tesla and the Sacramento arena provisions of SB 743 that provide procedural or other relief from CEQA requirements for special projects, rather than address the broad nature of the environmental review system. This spring SB 1309 drew critics across an ideological expanse from the Sierra Club to the Sacramento Bee editorial board. With Sacramento a candidate for Tesla's battery factory, the Bee carefully expressed approval of Elon Musk and his lucrative businesses — and yet still criticized SB 1309, saying "we don't think that only VIPs – Very Important Projects – should be given relief from the state's important but often misused California Environmental Quality Act." (See http://bit.ly/1nwqu4R.) Samson said "many are reluctantly supporting those types of bills" because if they don't support them then they lose their chances of bringing in an important project, "but at the same time, if this is good enough for some projects why can't it be good enough statewide?" Among other potential areas for legislation is the CEQA front in the eternal conflict between construction companies and labor unions. That was evident on SB 1451, which important labor groups opposed. Business lobbyists have long accused unions of using environmental objections as leverage for contractual advantages such as project labor agreements. A statement issued by the State Building & Construction Trades Council of California said the SB 1451 bill was held back "after the Building Trades' legislative advocates told committee members that the measure would have allowed agencies to ignore risks to public health, communities and construction workers." The statement called the bill "yet another attempt by the Chamber of Commerce, developers and industry to remove our members' voice from the development process." In the SB 1451 public hearing discussion, agreement had almost seemed to emerge on concern for unlawyered citizens who learned of projects at the last minute, in some cases because of perfunctory compliance with public notice procedures. So would better public notice procedures be a route toward some agreement? Samson said "we made it very clear to the opposition that we were open to" discussing alternatives to make sure that CEQA is providing adequate and effective notice to the public. But he felt more thorough public notice wouldn't resolve the basic disagreements with environmental and labor groups. Pettit and Samson each independently brought up a possible business-lobby effort on another form of disclosure: to learn more about the identities of organizations challenging projects. Pettit predicted "the same old stuff" on CEQA in the next session would include disputes over exemptions, efforts to make preparation of the administrative record more difficult for challengers, and more efforts to limit project challengers' standing to sue, in an effort to deter unions and ad-hoc community groups. In that last category he pointed to "very serious First Amendment issues" surrounding goals such as inquiring into organizations' membership and funding sources. He said it's common to point to the narrower standing rules of the federal National Environmental Policy Act as an example – though his own response was that an environmental issue, once raised, needs to be resolved, regardless of who raises it. But Samson argued for more disclosure on "the new wave of neighborhood groups." He said when a proponent is sued by a neighborhood group – "citizens against blah" or "neighbors against blah" – "You don't know who is actually suing you or who is financing that suit." He said the identity of parties suing thus became an issue, and a problematic one under a statute dedicated to disclosure and transparency. For a potentially related case from this spring barring depositions of homeowners' association members in a construction defect case, see Seahaus La Jolla Owners Association v. Superior Court , discussed at http://www.cp-dr.com/articles/node-3453, text at http://www.courts.ca.gov/opinions/documents/D064567.PDF. But considering the many changes that OPR and the State Supreme Court could unload any day now, it remains to be seen how much of the current legislative posture will turn out to matter.

This fall, California's Strategic Growth Council will release a preliminary assessment about SB 375's implementation to date. So now is a good time to step back and deeply reflect on how we are running public participation processes in this state, especially legislatively mandated ones. We need to consider how legislative requirements like those for the SB 375 regional planning process may help or hinder meaningful public engagement. Public process design is critical when participants are ideologically divided and do not trust each other or the public agencies in charge. It can be important to seek out areas of common ground. For example, all of us in a process may not able to agree on whether climate change exists, but we might be able to agree that hybrid vehicles should pay their fair share for road costs. We may not be able to agree on whether high density housing is beneficial in most circumstances, but we could do joint fact-finding to assess impacts on property rights, property values and public services like schools, police and fire departments. In the course of my research on contested regional planning issues in the San Francisco Bay Area and in Atlanta, Georgia, surprising areas of convergence emerged. In the Bay Area, Tea Party and property rights activists came in force to block regional planning meetings run by the Metropolitan Transportation Commission and Association of Bay Area Governments to develop the region's first Sustainable Communities Plan, known as Plan Bay Area. These activists were not alone in opposition, as plaintiffs from across the political spectrum filed four lawsuits against the plan: two with connections to Tea Party and property rights activists, one brought by the Building Industry Association Bay Area, and one was by environmental organizations. And in the progressive left stronghold of Marin County, citizens not affiliated with Tea Party or property rights groups have raised Cain against cities that adopted higher density development areas in order to access regional funds available through the plan. (On early Tea Party and property rights activists' opposition to SB 375 see http://www.cp-dr.com/articles/node-3011. On the initial Plan Bay Area lawsuits see http://www.cp-dr.com/articles/node-3403. On the suits' partial resolution this year see http://www.planetizen.com/articles/node-69937, http://www.planetizen.com/articles/node-70187 and the Mercury News at http://bit.ly/1rngVsh.) In Atlanta, Tea Party and property rights activists led the opposition to a regional sales tax proposal before the voters in 2012. The measure would have dedicated half of the estimated funds generated to public transit projects. An unexpected loose coalition of strange bedfellows emerged: Sierra Club and NAACP leaders joined the opposition, in part because they felt the proposed transit projects were not the ones the area needed. Although it is hard to say what impact the coalition had on the measure, the tax failed tremendously with 63% of the votes in opposition. Convergences When examining the two contentious regions, I found four points of convergence between conservative activists and planning scholars, largely over transport policy and process matters, that warrant planners' attention. These align generally with progressive activists' positions even though the divergent sides come to planning from different vantage points. First, the most surprising area of agreement was in Atlanta when on a vehicle miles traveled (VMT) fee. Conservative activists supported this fee as a replacement for the gas tax if major administrative and privacy challenges were overcome. Like researchers who argue for fees based on vehicle miles traveled, conservative activists are concerned that drivers of electric and hybrid vehicles are not paying their full share of costs to the transport system. Progressives often advocate for this fee transition too, but with the hope that funding could be directed to transit, bicycle and pedestrian projects. Second, conservative activists in both the Bay Area and Atlanta questioned the wisdom of running costly rail lines in low-density areas – another area where they align with researchers who caution that mass transit needs a sufficient mass of residents and jobs to generate transit riders or the system will have little use. Instead, these activists, researchers – and often progressive counterparts too – view Bus Rapid Transit service as a viable less expensive option, particularly when a local area does not have the density to support rail. Thus, where we may think that conservative activists oppose transit outright, those I interviewed offered a more nuanced understanding. Like researchers, they looked to development densities for ridership generation and found it important to weigh project costs.  Third, activists in both regions questioned the authenticity of the planning process and whether planners went through the motions to arrive at a predetermined outcome. Planners involved likewise questioned the activists' motivations and actions. Planning scholars and progressive activists have debated for decades whether large-scale planning processes with public meetings and hearings are meaningful formats for gaining genuine public input. Fourth, in Atlanta, activists across the political spectrum opposed the 2012 sales tax proposal because it was a regressive across-the-board tax rather than a user fee. Transportation scholars similarly have cautioned against sales taxes to fund infrastructure. They also argue that in California, where local sales taxes for transport run rampant, the state should move to a user fee system. Possibilities A way forward for planning efforts when the citizenry are divided along ideological lines could begin with participants seeking to find areas of common ground like the ones outlined above. Planners could draw from the political theory of agonism to reframe their approach to civic engagement. In agonistic contexts, actors come to consider their opposition as legitimate adversaries rather than as enemies unworthy of engagement. In such moments, actors retain their core values and identities but they may also find limited common ground with others, or agree to disagree. Group consensus is not a goal, but compromise through bargaining and negotiations may occur. Debates can be informed by analyses jointly developed between activists and planners that examine, for example, the range of potential property rights impacts and the full-lifecycle costs of projects and plans. While challenging, it may be worthwhile to establish the long-term objective of transitioning from highly antagonistic, counterproductive encounters to interactions of agonistic debate. In the long run, the state may be well served by looking to areas of convergence as key to a  comprehensive examination of SB 375's public participation and general requirements. Current law and practice push regions to adopt plans that can be vulnerable to lawsuits if they are supported only by weak consensus. Such plans may be barely able to hold together over time. We wouldn't ship a package long-distance in crumpled wrapping and fraying tape. Likewise, we need solid community negotiations to keep  plans from coming apart. Dr. Karen Trapenberg Frick is Assistant Adjunct Professor in the Department of City and Regional Planning at UC Berkeley. She is Co-Director of the UC Transportation Center and Assistant Director of the UC Transportation Center on Economic Competitiveness in Transportation (UCCONNECT). Her research focuses on the politics and planning of transport infrastructure. Recent projects have included a study of Tea Party and property rights activists' perspectives on planning and planners' responses. Links and references: For more on the research discussed above, see Dr. Karen Trapenberg Frick's papers in the Journal of the American Planning Association at http://www.tandfonline.com/doi/full/10.1080/01944363.2013.885312 and in Urban Studies at http://usj.sagepub.com/content/early/2014/04/07/0042098014528397. For preliminary findings from the Strategic Growth Council on self-assessments by Metropolitan Planning Organizations on their SB 375 planning processes, see http://www.sgc.ca.gov/docs/Agenda_Item_7_MPO_SCS_Self-Assessment_Update.pdf. On the political theory of agonism, see: Hillier, J. (2002) Direct action and agonism in democratic planning practice. In: P. Allmendinger and M. Tewdwr-Jones (Eds.) Planning Futures: New Directions for Planning Theory, pp. 110-35. Mouffe, C. (2013) Agonistics: Thinking The World Politically. London: Verso.

The Sierra Club's Marin Group of chapters brought a court challenge July 10 seeking to reverse the Coastal Commission's May approval of the Marin County Land Use Plan Update. Filed by attorney John E. Sharp of San Rafael, the writ petition alleges violations of the Coastal Act, principally in the update's provisions allowing farmers to obtain permits as of right for more houses and other structures under a broadened definition of "agriculture." It further alleges noncompliance with CEQA through failure to analyze feasible alternatives or mitigation measures -- an argument founded on the requirement that, although local coastal plan revisions need not prepare a full EIR, they must include findings functionally equivalent to those required by CEQA. As of Monday county staff responded that they had not yet seen the suit and spokeswoman Sarah Christie said the Commission had not yet been served. The Environmental Action Committee of West Marin (EAC), which had sought more development restrictions in the spring, chose not to file suit. Amy Trainer, executive director of EAC, listed continuing criticisms of the May-approved plan, but wrote: "EAC is committed to working with the Coastal Commission staff to address our concerns in the Implementation Plan. We decided that a lawsuit at this time was not in our best interest." The contested update forms the initial, most substantial part of the pending Marin Local Coastal Program Amendment (LCPA), which would be the first update to the program since 1981. The Commission has been waiting to take up the implementing ordinances that complete the LCPA until they are rewritten to reflect the tangle of last-minute amendments that the Commission added to the Land Use Plan in May. (See http://www.cp-dr.com/articles/node-3493 for details from the meeting.) A press release from the Sierra Club Marin Group quoted Executive Committee member Elena Belsky as warning that "if allowed to stand, the Commission's process and decisions regarding the Marin Local Coastal Plan Amendment will substantially weaken environment protections along the entire California coast." A further statement attributed to Belsky warned against "the precedent set of poor process and lack of environmental review, which could become the standard for updates of other LCPs around the state." The release and petition said the existing plan failed sufficiently to respect public participation rights and to consider the plan's effects on natural habitats, the appearance of the area, and the preservation of prime farmland. The petition included claims in an area disputed during the May hearing: that because the amended land use plan allows extra "intergenerational" farmhouses and other added farm housing, and because "the amendment redefines 'parcel' as 'legal lot of record'," the plan could "expose the coastal zone to over 1,000,000 of new residential development on agricultural lands, insofar as conversion from 'parcel' to 'legal lot of record' can be accomplished administratively, without scrutiny or regulation." It was not clear if this phrasing was meant to renew a concern raised in the May debate that permits for new farmhouses might be granted per 60-acre buildable lot, rather than allowing one set of the defined types of buildings on each entire farm. Trainer did not respond to the text of the Sierra Club petition, but she appeared to take a different view in an email answering queries about EAC's decision not to sue. She wrote that the Commission had "clarified" that the allowed construction was per farm, not per legal lot. But would that rule create an incentive to divide existing large farms into smaller 60-acre ones, potentially for hobby farmers? She wrote, "We are concerned about that but understand that most agricultural operators in the coastal zone have no intention currently to do this. We are hopeful that the Marin Agricultural Land Trust is working to secure both conservation easements and affirmative agricultural easements to prevent hobby farms." (Arguments from Coastal Commission staff that each farm gets just one set of farm buildings appear in the first addendum to the staff report on Pages 8-9 of the PDF in the May agenda item packet at http://documents.coastal.ca.gov/reports/2014/5/Th12a-5-2014.pdf.) The Sierra Club Marin Group's press release said the contested plan would allow construction of "between 129 and 210 new residences in the next ten years." As discussed at http://www.cp-dr.com/articles/node-3493, the potential number of houses that could be built on West Marin farmland under the new policy was calculated variously during the May debates as ranging from 110 under the county's view of conditions under the Land Use Plan, to a possible 263 if current Williamson Act restrictions on farmland were lifted. Trainer's email and the Sierra Club press release each criticized the broadened definition of agriculture, which allows a first, second, and (on 180-acre properties) a third farmhouse to be built on each farm, with specified other structures allowed that could include 5000 feet of commercial processing space. The agricultural designation makes these principally permitted uses, allowable as of right and only appealable directly to the Commission in certain circumstances, such as for properties nearest coastlines or watercourses. Trainer wrote, "Sometimes Marin County's Development Agency simply gets it wrong, and when that happens the public should absolutely have the right to seek review before the Coastal Commission." EAC's past comments, like the Sierra Club's complaint, had called for environmental analysis that would qualify as the functional equivalent of an environmental impact report. In her recent email Trainer renewed a CEQA-type concern along similar lines that "little to no environmental cumulative impact analysis was performed" for "significant changes" to the LCP. The Sierra Club press release pays extra attention to the role of Marin County Supervisor and Coastal Commission Chair Steve Kinsey, saying he has been criticized over the years for "aggressively promoting development" and saying he has discussed a wish to make the Commission "more 'streamlined' and 'user-friendly'". The Sierra Club suit's docket is available at http://bit.ly/1p4rRbO. Belsky wrote that the petition would soon be posted on the Marin Group's Web site, which is at http://www.sanfranciscobay.sierraclub.org/Marin/.

Walnut Creek officially began preparation last month of a West Downtown Specific Plan focused on links between the city's BART station and downtown, with related attention to nearby major boulevards. The city's initial Notice of Preparation papers are at http://bit.ly/WAz7Wv. Linked thence, the main West Downtown Specific Plan page at http://bit.ly/1lpCXH0 says "This important plan will focus on making it easier to walk and bike between the BART station and downtown; and plan for new homes and businesses between Olympic Boulevard and the BART station, while preserving the Almond-Shuey neighborhood." The site reports the city has begun its work by sampling public opinion in small groups and workshops, and with a consultant's report on expected transportation and land use changes. It offers a "Self-Guided Transit Oriented Development Tour" (http://www.walnut-creek.org/civicax/filebank/blobdload.aspx?blobid=7944) featuring model transit-oriented projects around the Bay Area: projects at the Pleasant Hill and Colma BART stations and in Redwood City, San Jose and Oakland. The most recent completed public document is a May 2014 "affordable housing and anti-displacement strategy" report by BAE Urban Economics at http://www.walnut-creek.org/civicax/filebank/blobdload.aspx?blobid=8649. A first draft of the Specific Plan itself is expected to appear in October. Fairfax Town Council backs off from zoning for housing The Fairfax Town Council in Marin County has repealed a zoning ordinance that would have allowed construction of 124 new housing units. The decision, per the Marin IJ , "leaves in limbo the future of a plan to build 40 single-bedroom affordable apartments for seniors at the Christ Lutheran Church property on the west end of town." (See http://bit.ly/1o4q89O.) The repeal followed a start on a referendum petition that got 1000 signatures opposing the ordinance, and a tough meeting July 12, in which officials explained the city's 2010 General Plan provisions and ABAG-determined housing goals, and critics accusing town planners of zoning for too much new housing. See http://bit.ly/1lpGhBY for the Marin IJ on the meeting. The city's main site at http://www.town-of-fairfax.org/ offers handouts from the event under "Current Topics" and promises to post video of it soon. Sacramento Kings seek $100 million bond from CEQA plaintiffs If environmental and social advocates are going to hold up the Kings basketball arena with lawsuits, the team's owners want a guarantee against the potential consequences of opening their stadium late. The Sacramento Bee reports at http://bit.ly/1nwGzwG that the team's demand for a $100 million bond is based on the possibility of losses if the stadium isn't open by October 2016, and, more starkly, an agreement allowing the NBA to move the Kings elsewhere if they don't have a Sacramento stadium by fall 2017. According to the Bee , the main case in question is Saltonstall v. City of Sacramento , a CEQA-based environmental impact suit filed in May. That case challenges the constitutionality of special CEQA leniencies provided to the arena project under SB 743, questions the commitment of public funds to the project, and claims the EIR has failed to address harmful environmental impacts to be expected from noise, crowds, and the remaindering -- hence blighting -- of the existing Sleep Train Arena. The paper says a second, more recent case may be consolidated with Saltonstall . That would presumably be Sacramento Coalition for Shared Prosperity v. City of Sacramento , the claim filed in late June by housing and environmental activists who, before filing suit, sought a Community Benefits Agreement to compensate for the arena's alleged future effects on the environment and local economy. (See http://bit.ly/1nHc0TI.) The Shared Prosperity suit and Saltonstall make overlapping claims about environmental impacts and the validity of SB 743. State Lands Commission challenges SF's Prop B height limit The State Lands Commission has filed a petition to stop the city of San Francisco from enforcing its newly passed Proposition B waterfront height limit. It alleges that "Proposition B is invalid because it specifically targets state-owned tide and submerged lands over which the Legislature has expressly precluded the right of local initiative." It says the the port lands addressed in the June ballot measure are not subject to local voters' control because they belong to the state and are governed by the Port Commission for the whole state's benefit. The petition is worth a look for its exploration of the history of tidelands as public trust and the lands' current status under the Burton Act. Lt. Governor Gavin Newsom, a former mayor of San Francisco, is one of the Commission's three members. City Attorney Dennis Herrera posted a defiant response at http://www.sfcityattorney.org/index.aspx?page=605. It argues that the city's port lands are managed under a combination of authorities, including the local Planning Commission and Supervisors, the San Francisco Bay Conservation and Development Commission (BCDC), and the State Lands Commission as well, in a framework provided by the Waterfront Land Use Plan mandated under 1990's Proposition H, a local initiative measure. Further, it questions the Lands Commission's reliance on Public Resources Code Sec. 6009, passed in 2010, as authority for preempting local ballot measures on Port lands. Herrera's statement cites to an uncodified section of the statute saying 6009 is not intended to change existing law. (For the 2010 bill, SB 1350, see http://bit.ly/1lpcQQq.) The SF Chronicle 's Bob Egelko reported at http://bit.ly/1oG6BsL that similar arguments were made in a lawsuit filed by developers last winter, and initially part-funded by the San Francisco Giants, in an effort to take Proposition B off the ballot. He reports the old and new cases may be consolidated. The case docket, which provides the complaint in PDF form, is at http://bit.ly/1wU6qOJ. For our June post-election look at Proposition B and San Francisco port lands, see http://www.cp-dr.com/articles/node-3510. (See today's ballot measure report at https://www.cp-dr.com/articles/node-3532 for potential effects on the pending Pier 70 ballot measure proposed for November.) How to regulate boarding houses fairly in LA? The LA Times reports Los Angeles' planners and City Council are debating how to regulate boarding houses, pushed by neighborhood complaints about disorder at particular buildings but seeking to avoid endorsing social prejudice or fair housing violations. The definition of a "family" under city ordinances is of particular concern for properties serving groups of people, sometimes with disabilities or in addiction recovery, who live together but who are not related by blood or marriage. See http://lat.ms/1lpJIsj. Fourth District grants leeway to transfer a taken property's Prop 13 advantage In a narrow ruling highlighting a lesser-used form of reassessment exclusion, the Fourth District Court of Appeal found a business property owner could make a late request, even after four years had passed, to transfer the low Prop 13 base year value of a property taken by eminent domain, so that it lowered the assessment for tax purposes on a second property bought to replace the first. The swap invoked a right under Proposition 3 of 1982 that as modified by the Legislature's Revenue & Taxation Code Sec. 68, may be invoked within four years after the eminent domain condemnation. However, the court held the base year value claim could be filed later than four years, provided the replacement property was itself purchased within four years after the eminent domain condemnation. The case is Olive Lane Industrial Park, LLC vs. County of San Diego . See http://www.courts.ca.gov/opinions/documents/D063337.PDF. Street washing, some sidewalk washing, still allowed by state water rules Municipal street washing, and sidewalk washing if the sidewalks really need it, are reportedly exempt from California's new water conservation rules. A change in the proposed rules exempts the washing of streets and buildings statewide; washing of sidewalks is allowed where a health and safety exemption applies. See the SF Chronicle at http://bit.ly/1myVPTF. Comparing the final July 16 statewide rule with the initially proposed July 8 version on the State Water Board's page at http://bit.ly/U4HBmI, both contain the health and safety exemption but two major changes are noticeable: one is that many (not all) references to "water" are replaced with "potable water", and the other softens a ban on "the application of water to any hard surface, including but not limited to driveways, sidewalks, and asphalt." The new comparable rule reads simply, "the application of potable water to driveways and sidewalks." The exemptions were especially sought by the city of San Francisco, which has an energetic sidewalk and street washing program. (See http://bit.ly/1m2eV4e.) San Francisco has been accused of using water trucks both to clean up waste left by sidewalk campers and to remove the campers themselves. http://alj.am/1gGjTVs HOAs lose power to enforce lawn watering Governor Jerry Brown signed AB 2100, by Assemblymember Nora Campos, D-San Jose, to stop homeowners' associations from fining members for watering their lawns less or not at all during a drought emergency. See http://bit.ly/1tsryM1 for details. The bill is closely similar to AB 2104 by Assemblymember Lorena Gonzalez, D-San Diego, and even closer to SB 992 by State Sen. Jim Nielsen R-Gerber. Mountain View activists want more housing in shopping center mix The Mountain View City Council was reportedly leaning toward approval of a plan for more housing at the planned San Antonio Center shopping center project -- a significant change from February, according to the Mountain View Voice at http://bit.ly/1n8nZKj. The paper reported the Campaign for a Balanced Mountain View activist group had threatened to place a measure on the ballot unless the affected shopping area's San Antonio Precise Plan was readjusted to balance housing with jobs. See http://balancedmv.org/. Active transportation promoters include Ed Begley, Jr. True to his many Everyman roles, actor Ed Begley, Jr. showed up at a meeting of the Los Angeles Metro policy committee as part of a group seeking more funding to encourage and ease walking and bicycling in LA. The public comment effort last Wednesday was organized by the LA County Active Transportation Collaborative, which includes the Safe Routes to School organization (see http://saferoutescalifornia.org/2014/07/16/at_financestrategy_lametro/). The committee passed a motion to create an active transportation finance strategy for the county that would measure "improvements for walking and biking" in order to define and fund goals and measure their degree of attainment. Streetsblog LA livetweeted the meeting on the hashtag #metrofundwalkbike, including Begley's part of it around https://twitter.com/StreetsblogLA/status/489530460540653569. In other news: The city of Pico Rivera held a community meeting July 21 on its proposed general plan revision. See the city site at http://www.pico-rivera.org/depts/ced/planning/plan.asp  San Diego's City Council decided to wait until September for a vote on increasing commercial development fees for affordable housing. See www.utsandiego.com/news/2014/jul/17/linkage-fee-delay. LA Curbed celebrated its own "Outdoors Week" with a roundup on the rebranding of the LA River as cleanable water and amenitizable waterway. See http://bit.ly/1qKACKn. Exide, the Vernon-based battery recycler cited repeatedly for lead and arsenic emissions, has been allowed to reopen under a settlement with the South Coast Air Quality Management District. Some critics, including Maywood Mayor Oscar Magana, questioned whether it ought to reopen at all. See http://lat.ms/1kP61rp. Google has bought the 188 Embarcadero building on San Francisco's waterfront and has announced plans to lease 250,000 square feet in nearby Spear Tower. (That's per Bloomberg and the Mercury News via the SF Business Journal . See http://bit.ly/1jIzcl9.) Maybe now fewer Google workers will commute from San Francisco to Silicon Valley? In another choice likely to mute criticism of those big white Google Bus commuter coaches, the company has begun to offer free shuttle buses for the public in Mountain View. See http://bit.ly/1kOCQVu for the basics. Per the Mercury News at http://bit.ly/1kODh1Z, routes for the four electric shuttles aren't established yet but the idea is to connect riders to movie theaters, shopping, errands, and the Google headquarters itself. At the other end of San Francisco's sumptuary scale, a pilot program will be placing portable public toilets with attendants at the three Tenderloin locations with the worst accumulation of feces on sidewalks. See http://bit.ly/1ktTjhy. With trial now over in the Martins Beach public access lawsuit, Vinod Khosla, the Sun Microsystems co-founder at the center of the fight, told the LA Times he started out by allowing visitors access to the beach property for a fee as the prior owner had done, but then he decided to close the gate because of "unreasonable" demands from county planners and the Coastal Commission. See http://lat.ms/1nQ0XDi. The National Law Center on Homelessness and Poverty issued its annual report on the criminalization of homelessness. Findings include a 60% increase since 2011 in local citywide bans on camping in public and a 119% increase since 2011 in bans on sleeping in vehicles. See http://nlchp.org/documents/No_Safe_Place.

Since our last discussion of architect Peter Zumthor's proposed new design of the Los Angeles County Art Museum, aka the Black Hole on Wilshire Boulevard (see http://www.cp-dr.com/articles/node-3442), several important events have taken place: The Page Museum, which employs paleontologists to excavate bones of ancient mammals from tar pits that lie east of the museum, pointed out that the new museum would overlie several active research sites. Emergency IM to Switzerland: Mr. Z, your tar pit museum has become mired in the honest-to-God tar pits! Back to the drawing board! To leave the tar pits undisturbed, Zumthor has now re-arranged the amorphous black mass of his new museum, which remains as soft-edged and angle-free as before. As newly redesigned, the bulk of the new building remains on the existing museum site on the north side of Wilshire. Then, in a surprise move worthy of Alien, a black mass surges out of the belly of the beast, leaping across the boulevard in the form of a bridge and landing (splat!) on a museum-owned lot on the south side of the street. This ingenious solution preserves the size of the museum while sparing the tar pits. No oxen gored here! No wonder public officials have been quick to endorse the design solution. Who could object? Well, bridges that span streets tend to block views, and views are important, especially on Wilshire, the thoroughfare once described by Reyner Banham as the "linear downtown" of Los Angeles. The view looking east from Fairfax Boulevard, in fact, is one of the best-known street scenes in the city. Only Sunset and Hollywood Boulevards have comparably famous street perspectives. (Some historically minded people might add the views of Broadway, Spring and Seventh streets, all in downtown LA, to that list.) Getting to the point, blocking the view of arguably the most prominent street in the city from a major intersection (Wilshire and Fairfax Boulevard) damages the city, period. It doesn't matter that the bridge may turn out to be an object of architectural interest. A single building, even one designed by the illustrious Peter Zumthor, is not worth the loss of the view of an entire boulevard. To solve one problem by creating another is not a good solution. The better approach, I think, would be to add height and mass to the "satellite" site on the south side of Wilshire. That parcel is located among high-rise office buildings, so a new tower would not look out of place. Insofar as the MOCA campus already consists of several free-standing buildings, the new Wilshire-South location would not be out of keeping, especially if the city provides a signalized pedestrian crossing on Wilshire to take the anxiety out of walking across a wide street. A free-standing building is a better solution than an above-the-street bridge, which will be extremely expensive due to seismic standards for public buildings. There are better uses for public money than obliterating the view of the Miracle Mile from the Fairfax District and Beverly Hills. Message to Peter Zumthor: It's time for Round Three.

November's local ballots aren't quite final; officials are still checking signatures on many petitions. But it's late enough in the season to have a sense of what's headed for a vote. (Especially in San Francisco and Santa Monica.) Here are some highlights of local measures likely to be on November ballots that are related to land use: City of Alameda: The Crab Cove Open Space Expansion Initiative would rezone a property in the disputed Neptune Point waterfront area that had been the subject of a housing development plan. The proponents' site is at http://friendsofcrownbeach.com/. More on related City Council action at http://bit.ly/1rl90xy. Four counties -- Butte, Mendocino, San Benito and Santa Barbara -- have fracking bans headed for their ballots; Mendocino's would be especially strict. Costa Mesa's City Council has definitely placed a city charter proposal on the city's November ballot. This is a second try: a similar charter proposal, Measure V, was defeated in 2012. See http://bit.ly/1mgfUhj and, for a prior mention with links, http://www.cp-dr.com/articles/node-3467. The charter description is linked from the city site at http://www.costamesaca.gov/index.aspx?page=1675, as are materials from March 18, April 22 and July 1 meetings on the issue. City of Pismo Beach: would make additions to city's sphere of influence for development in Price Canyon: See http://bit.ly/1nOA5mZ. City of Placerville: would ban roundabouts and traffic circles unless specifically approved by voters. The proponent group, Friends of Historic Hangtown, discusses the underlying Main Street roundabout dispute at http://saveourcounty.net/projects/placerville-roundabout-main-st/. A Google terrain view of the intersection described, showing the awkward not-quite-meeting of Cedar Ravine and Clay Streets at Main, is at http://bit.ly/1mY8OOZ. City of Santa Monica: A ballot measure would increase the real estate transfer tax only for sales of $1 million or more, and a companion advisory measure would "allow voters to express their preference" that the funds be spent for affordable housing. See http://www.smvote.org/BallotMeasures/. The Santa Monica Lookout reports a third housing measure will appear on the ballot as well, to increase registration fees for landlords while reducing how much of that can be charged to tenants. See http://bit.ly/1wSbAL3. Proponents of continuing aviation at Santa Monica Airport have qualified a measure that would require future voter approval to convert the site to any other use. It's the latest round in a fight that has included federal litigation against the FAA (see http://lat.ms/1k8IpDq), allegations by aviation proponents that airport commissioners have conflicts of interest (see http://lat.ms/1t5xM4d) and a legal challenge by opponents of the ballot measure who have called the airport a hazard to nearby residents: (see http://bit.ly/1jSbfYi and http://bit.ly/1zYB3qK). The Santa Monica City Council decided to rescind its approval of the Hines "Bergamot Transit Village" development in May, preempting a petition against the project that had the signature to go to the voters. See the final item at http://www.smvote.org/BallotMeasures/ and a commiserating developer's eulogy for the project via http://www.planetizen.com/articles/node-69407. City of San Francisco: San Francisco has an especially large number of ballot measures pending for November. Among them: Proponents of two rival San Francisco housing measures have agreed to withdraw them from the ballot in favor of a single affordable-housing proposal. Supervisor Jane Kim had obtained the required four Supervisors' votes for a "Housing Balance" measure to require 30% affordable units in new residential construction. Mayor Ed Lee had responded with his own "Build Housing Now" proposal to invalidate Kim's proposal and remove other regulatory constraints on residential construction, while stating policies in favor of affordability. Pressures to avoid a public battle between the two measures included a widely shared critical commentary on both by Board of Supervisors President David Chiu, available at http://bit.ly/1qZ6yL3. The San Francisco ballot measure status page at http://www.sfgov2.org/index.aspx?page=2969 still shows the proposals as filed but news reports said Kim and Lee agreed June 24 to cooperate on placing a single new measure before the voters that sets housing goals and policies and calls for planning in favor of affordability. See http://bit.ly/1xtqFDm. The alternative SF Bay Guardian criticized the new proposal as unenforceable. See http://bit.ly/UIJKEC. An "anti-speculation tax" measure would impose an extra tax on real estate that changes hands within five years. (See Morris Newman's commentary on whether it will work, at http://www.cp-dr.com/articles/node-3519.) Two mutually exclusive measures on the Golden Gate Park athletic fields renovation, where controversy has flared over the proposed addition of astroturf, bright lights, and added space and facilities for spectators. All through the spring, signature collectors haunted organic grocery stores and left-leaning events with  petition against the astroturf plan, and their persistence paid off by qualifying the measure. In response a majority of the Board of Supervisors approved a ballot measure for the disputed astroturf, lights and other construction. For details see http://bit.ly/UrzQHz. Proponents of redevelopment at Pier 70's Union Iron Works complex have gathered signatures for a measure measure approving redevelopment of the Union Iron Works complex at Pier 70, in a preemptive response to the June-passed Proposition B restriction on waterfront height limits The measure is likely to pass, but whether it will take effect depends in part on the newly filed State Lands Commission lawsuit against Prop B, which argues that state port lands are not subject to governance by local city voters. The State Lands Commission complaint, which is available at http://bit.ly/1wU6qOJ, alleges that the Pier 70 ballot measure shares this defect with Prop B. The "Restore Transportation Balance" proposal, a pushback against the city's use of new parking meters and increased rates to push people toward active and public transportation. Streetsblog SF notes in a link-rich item at http://bit.ly/1rkqNVR that the measure is backed by Facebook co-founder Sean Parker. It has been greeted with sarcasm from several quarters (including Streetsblog at http://bit.ly/1mSrCEo), but the conservative Potrero View neighborhood paper was cheering for the group at http://www.potreroview.net/feat10582.html. The group's own home page is at http://www.restorebalance14.org/. The initiative would mandate free Sunday parking, condition new and variable-rate meters on a local neighborhood petition process, freeze city parking rates for five years, and increase representation for "motorists" in SFMTA governance. (In the meantime SFMTA restored free Sunday parking in most of the city. See http://sfmta.com/news/notices/sunday-parking-meter-changes-effective-july-2014.) For an incomplete but helpful general roster of local California ballot measures on all topics, see Ballotpedia at http://bit.ly/1nuVCqG.

The Strategic Growth Council (SGC) held a celebratory but serious public meeting July 10 to take stock of its budgetary good fortune under California's cap-and-trade program. Under the SB 862 budget trailer bill enacted in June, SGC suddenly has $130 million to fund the first year of a new Affordable Housing and Sustainable Communities (AHSC) program, and after that has been promised ongoing funding from 20% of the state's ongoing cap-and-trade auction revenues. Previously funded by one-time grants (see http://www.cp-dr.com/articles/node-3513), the council now has a permanent funding source. Amid mutual congratulations, the July 10 meeting had aspects of a founding convention -- and moments of the uncertainty that blank pages induce -- and moments, too, of the early-stage shouldering that new prospects of public money induce. SGC has a program to design. Not that it's starting from scratch: The money has destinations and priorities fixed by statute, and SGC can call on cooperating state agencies for staff to administer it. But the program as yet lacks precise rules for allocating the money and a definite pipeline for the money to flow through. The Council has to build both, largely in deference to a public process, more or less in a hurry. The Affordable Housing and Sustainable Communities program will fund planning and construction to reduce greenhouse gas (GHG) emissions by means consistent with SB 375 and AB 32, coordinating energy-efficient transportation, land conservation and compact housing growth. Under requirements in the new SB 862 budget trailer bill and 2012's SB 535, half of the money must be spent on "housing opportunities for lower income households" and, as a separate requirement, half must benefit disadvantaged communities. Ten percent must be spent on programs actually within disadvantaged communities. Other environmental legislation passed since AB 32 conditions the program's responses to GHG reduction and its obligation to monitor success at the task. Those rules left room for a lot of questions at the meeting. Would the program focus on urban transit-oriented development, or could it fund more varied and more rural projects? Among the goals of housing, conservation and transportation efficiency, would one predominate? Would one of the state agencies partnering with SGC assert primary control? How much power would locally affected people and organizations have over the nature of promised benefits to disadvantaged communities? How would larger nonprofits be involved? And -- as Bill Higgins of the California Association of Councils of Government (CALCOG) has suggested -- should regional planning entities help allocate the money? Delegation to agencies of some powers, not all The July 10 meeting's agenda was simple: Hear briefings from agencies, hear public comment, make basic delegations of new duties. The Council accepted a staff recommendation to delegate administration of one program component, the Sustainable Communities Agricultural Land Preservation Program (SCALPP), to the Natural Resources Agency or Department of Conservation (which is housed in Natural Resources), and administration of the rest to the Department of Housing and Community Development (HCD). At the initiation mainly of Natural Resources Secretary John Laird, and of the Council's public member, Bob Fisher, the Council removed a clause from the delegation phrasing that appeared to privilege those two agencies over others in working with SGC to develop the new program's rules. At the last minute members took out the word "separately" from a reference to the SCALPP program because it might imply lack of interest in coordinating land preservation with other aspects of projects. Speakers from advocacy groups repeatedly asked for and got reassurances that the SGC itself would retain approval power over the program's guidelines and distributions. Laird particularly said he had been lobbied by callers suggesting money given to HCD to administer would get stuck there, "and you'll never see it again." Susan Riggs, deputy secretary for housing policy at the Business, Consumer Services and Housing Agency, parent agency to HCD, said the agencies given the delegated administration tasks would handle technical processes such as scoring and reviewing grant applications under SGC's direction. Council members and staff presenters confirmed to each other that additional agencies, prominently including Caltrans and the Air Resources Board (ARB), would consult as necessary, in a program especially meant to encourage projects combining multiple agencies' expertise. For example, SGC chair Ken Alex noted, only the ARB had the expertise to monitor and quantify projects' effects on GHG emissions. For an account of the meeting by the National Resources Defence Council that emphasizes the definition of roles, see http://switchboard.nrdc.org/blogs/aeaken/strategic_growth_council_clari.html. Staff from SGC and cooperating state agencies presented a calendar calling for quick work on a double track. Edie Chang, deputy executive officer with the ARB, told the panel the hope was to have draft interim guidance ready in August for agencies' use in September to "start getting money out the door later this summer and early this fall." Among its tasks, ARB has begun designing methodologies to measure various types' of projects' success in reducing emissions. On a parallel, longer-range track, SGC planned three workshops, in Northern, Central and Southern California, for public discussion of the program's long-term guidelines. On July 29, SGC announced at http://sgc.ca.gov/ that it would hold workshops on the guidelines as follows: August 12, 2014, at Fresno City Hall, 1-4 p.m. August 14, 2014, in Oakland's ABAG office, 1-4 p.m. August 15, 2015, in LA's Caltrans district office, 9 a.m.-noon For the main announcement document see http://sgc.ca.gov/docs/SGC_AHSC_Public_Workshop_Notice_August_2014_FINAL.pdf. The document includes links to register for the limited number of seats at each workshop. At the July 10 meeting, SGC Deputy Director Allison Joe said the plan was to bring guidelines initially to the Council in October, then back for final approval in December, so a solicitation for funding proposals could go out to candidates in January. Deadlines for applicants would fall in March or April of 2015, with awards to follow in May or June. Laird, who is one of several state agency chiefs serving on the Council, warned that the continuing funding was only "as good as the next budget vote, so keep that in mind." But discussion at the meeting presumed the first year's work would put a structure in place for longer-term use. (For detailed June budget bill coverage see http://www.cp-dr.com/articles/node-3509.) SGC Executive Director Mike McCoy described a careful staff process seeking to propose enough structure to start operations, while purposefully leaving many details imprecise to avoid pressuring the public guideline-drafting process. He told the panel, "We worked very diligently to not have undue influence from any existing set of guidelines of anyone's, whether it be the SGC's or Housing and Community Development or transportation programs of various stripes... We started out with a seed document that was an amalgam of a couple of different programs, and decided that it had too much precision and we didn't want to preclude valuable discussion by the Council or the public, so we backed off from that..." Staking out early claims There was push-and-pull already in the public comment period, which was populated entirely by administrators and advocates closely familiar with past transportation and housing programs. Speakers associated with the SB 535 Coalition and affordable housing and social equity groups, including Joshua Stark of TransForm, asked for careful definitions of who counted as low-income, which communities counted as "disadvantaged," and how to measure benefits to either. Some called for transit pass subsidies and emphasis on affordability for genuinely low-income residents. Several said funding awards should be conditioned on protections against displacement of low-income residents, and that projects causing displacement should not be funded. There were related calls for technical assistance to potential grantee groups in disadvantaged communities, where the capacity might not already exist to prepare competitive grant proposals. Several speakers called for a full review of the program's new structure and direction after a year of operation. And was there an ideal model in mind for AHSC projects, or should there be? One project discussed at the meeting, but not exactly put forward as a prototype, was the Union City Intermodal transit-oriented project: 800 new housing units, of which 251 are affordable, surrounding a BART station built in the 1970s, with new public investment in the affordable units and in a new entrance and approaches that shortened the walk to the station from the new housing. Acting Director Randy Deems of HCD presented the project as an example of environmentally sound work done through the past Transit-Oriented Development (TOD) grant and Infill Infrastructure Grant (IIG) programs funded by Proposition 1C, the 2006 housing bond. Mark Evanoff, redevelopment manager for Union City, gave a more detailed, enthusiastic description of the project, saying it would need more funds to complete its buildout and making a pitch for release of 2011 redevelopment bond funds through the proposed AB 2493 and SB 1129. But Rob Wiener of the California Coalition for Rural Housing said the new program shouldn't be entirely for transit villages at the kinds of transit stations that only can exist in urban areas. He said the existing TOD program, though worthy, has only awarded funds in 7 counties to date, and over half of that in Alameda and Los Angeles Counties. He pointed the Council's attention toward San Bernardino, the Inland Empire and San Joaquin Valley, all places with terrible air quality: "They are transit-poor. They don't qualify for TOD." On the other hand, he said, they are exemplars for projects reducing vehicle miles traveled (VMT) and for construction with zero net energy use -- projects that could qualify for funding under the new SGC program. For similar reasons, Rachel Iskow of Mutual Housing California, said she feared the new SGC program, like TOD, would "effectively become one more contributor to the 'two-California' phenomenon," aiding the more prosperous coastal cities while inland towns suffered from poverty, air pollution and unhealthy housing. As an alternative example to the TOD transit village model, Iskow offered a project of her own, planned for the small town of Woodland. She said Woodland's only public transit is a bus system with low service levels, but the development will be a zero net energy project, exclusively for agricultural workers and their families, allowing them to live in healthy housing near a bus stop, with lowered utility bills and a chance to contribute to the grid through their new rooftop solar panels. It wouldn't be TOD, she said, but it would help "close the green divide and California's own divide." Less frequent speakers leaned toward preserving farms and open land against sprawl, especially at urban boundaries. Jeanne Merrill of the California Climate and Agriculture Network called strongly for integrating the conservation of agricultural land with the rest of the sustainable communities goals. She argued projects should have to show how they will avoid converting agricultural land or open space, and that the project should not fund projects counter to those goals. Further, she called for long-term permanent protection of land at risk of development, calling conservation easements the best tool for the task. Uniquely, she argued that SCALPP land preservation projects in disadvantaged communities should be counted toward the required percentages of disadvantaged-community spending under SB 535. But Laird warned that conservation easements and other traditional open-space preservation measures can be expensive enough for one such project to eat the whole new program's budget, creating a need instead to "leverage this or stretch the reach as far as we can." Since the meeting the Sacramento Bee 's Jeremy White has published a look at the AHSC program's possibilities from an agricultural land preservation point of view. See http://www.sacbee.com/2014/07/19/6568511/cap-and-trade-could-aid-preservation.html. A role for regional government councils? Bill Higgins of the California Association of Councils of Government (CALCOG) called attention to a pre-hearing letter submitted as public comment by State Sen. Darrell Steinberg, the legislator most credited with bringing through funding for the sustainable communities program. (See http://www.sgc.ca.gov/docs/Public_Comment_Letters_071014.pdf.) Steinberg had written that SGC should be the lead agency in ranking projects and distributing funds, and that councils of governments should be involved formally as they have been on prior SB 375 implemntation, emissions reduction should be maintained as the chief goal, and there should be flexibility for future changes. Higgins asked for more clarity on how to involve the Metropolitan Planning Organizations (MPOs) in the new program, and separately suggested "regional delegation" could be an element of the program as well as competition for grants. Expanding on his comments after the hearing, he wrote: "We believe strongly that MPOs and regional agencies outside of MPOs are the right level of government to make project level determinations about funding. It's what MPOs and RTPA do with existing sources of federal and state funding. Our members have existing staff expertise—we do not have to staff up. And it makes sense that the agencies responsible for implementing the SB 375 mandate have discretion over project selection. To be sure, the state should have a significant role in setting clear, comprehensive guidelines about how such funds could be awarded. But as Senator Steinberg noted, putting this 'knowledge and expertise' to use is 'crucial to the success' of the AHSC program." Higgins also suggested a longer view might be in order on grantmaking. At the meeting he said, "What's good for this year might not be good for five years from now." He suggested creating a process to offer "funding certainty" for new kinds of projects. Later he wrote, "Members of the council stated that they needed to develop a program quickly to demonstrate effectiveness to the Legislature before the next budget cycle. While it is understandable, there should be an acknowledgement that more effective programs could be developed with more time. The short term need for speed should not affect long-term design options that may be more sustainable and equitable.The Council should commit to continuing to examine longer-term options during and after the first year." A full video recording of the meeting is at http://www.sgc.ca.gov/s_071014_meetingmaterials.php with links to the meeting agenda, handouts, and pre-meeting comment letters.

The Coastal Commission had plenty to worry about this month but the big-ticket item, the Santa Monica Mountains Local Coastal Program (LCP), was at last not problematic. After 28 years of difficult stop-and-start negotiations, the final Local Implementation Plan (LIP) approval session sounded like a Thursday morning at the Oscars. The first "I'd like to thank..." litany of gratitude came from Jack Ainsworth, senior deputy director for the Ventura-based district office with responsibility for LA County. That was after he'd announced full agreement between the County and Coastal Commission staff on the 600-odd suggested modifications to the original LIP, which he termed "nothing short of a miracle." Then it was the turn of termed-out LA County Supevisor Zev Yaroslavsky, who drove the LCP to completion as his legacy project. And then more mutual thanks: to Yaroslavsky, the Coastal Commission staff for long hours against tough deadlines; County Planning Director Richard Bruckner and his staff; the Commission, the public, homeowners' associations, equestrians, voters. A unanimous vote of the Commission that day gave the plan its last substantive approval. It now goes to the County for re-endorsement as amended, then back to the Commission for endorsement, then becomes fully final. The plan covers 50,000 acres of steep canyonlands above the City of Malibu's coastal strip: a territory of fragile habitats, expensive houses, organic farms and vineyards, parks -- and locally traditional horse corrals. Per the program's last and toughest negotiations, new farming is discouraged, new vineyards are banned outright, and the horse corrals will be either helped toward compliance or, if that's impossible, allowed to phase out, even allowing limited nonconforming uses to continue a while after sales to new owners. (For more background see http://www.cp-dr.com/articles/node-3474.) Susan Jordan of the California Coastal Protection Network used her public comment minutes to recall, by contrast, the 2002 conflict when the Legislature required the Coastal Commission to draft and certify an LCP for the city of Malibu. "What went down during that fight was -- I can't even describe really what it was like but it was terrible. It was contentious. There was anger on all sides. And it finally got done but it was -- it left everyone really bruised." Whereas this time -- she professed herself "nothing short of amazed" to see letters of support from Malibu City Council members. She said, "This is a very progressive LCP -- well, it's not there yet, but almost." Consultant Don Schmitz spoke as he had in April for the Coastal Coalition of Family Farmers, a group formed this spring in alarmed response to the planned restrictions on agriculture. Schmitz's group had especially fought the LCP's moratorium on new vineyards. He made two last appeals at the July meeting: first, to let farmers add a little more growing space in the ten-foot "fuel modification zones" required along roads, and, second, to let them install more solid barriers than the required wildlife-permeable fencing around organic farmland. He lost on both counts. Heal the Bay's last-ditch effort, less insistent, was to call for more mitigation during the "temporal loss" created by the temporary grandfathering of nonconforming horse properties. The group also called for more careful monitoring of stream impacts. Again, no changes were made to the addendum worked out between county and Commission staff before the meeting. At last the deal was done. The main July agenda document at http://documents.coastal.ca.gov/reports/2014/7/Th15a-7-2014.pdf includes as attachments the LCP's two now-completed parts: the Land Use Plan, approved in April, and the Local Implementation Plan, approved in July. The main document starting at Page 141 includes richly textured maps showing the new patchworks of land use categories, followed by categorizations of potential land uses, from "Arboretums and horticultural gardens," to "Convents and monasteries, stand-alone," to bait and tackle shops, tasting rooms, union halls, youth hostels, and "Wild animals, the keeping of, either individually or collectively for private or commercial purposes." Agenda materials for this and all July Coastal Commission items, with votes noted, are at http://coastal.ca.gov/meetings/mtg-mm14-7.html. San Diego port district plan withdrawn over visitor affordability The Port of San Diego withdrew a proposal to rezone East Harbor Island, which it owns, after the Port, Commission staff, and the Commissioners themselves could not agree on rules for lower-cost visitor accommodations on the site. The case drove the Commissioners to renew discussion about the meaning, purpose and appropriate quality of "lower cost" accommodations, and to ask whether Commission staff were making policy on the subject backhandedly in negotiating mitigation fees case by case. Current zoning on East Harbor Island calls for a single 500-room hotel. The property's long-term lessor, Sunroad Marina Partners, LP, proposed to divide those 500 rooms among three different hotels. The Commission found that troubling because it would take up more space, crowding out other possible lower-cost visitor accommodations such as campgrounds or a hostel. The Port's proposal called for the developer to "develop or designate its fair share of on-site or off-site lower cost visitor accommodations or pay an in-lieu fee based on a study conducted by the District." But the Commission found that short on specifics. By contrast the Commission staff were calling for a very specific, and rather steep one-third of the hotel units -- 166 rooms -- to be lower-cost overnight accommodations. Asked where the one-third fraction came from, a staff member  explained late in the discussion that the proposal called for three hotels, the one-third proposal was made at "the beginning of our negotiations with the port," and discussion on the subject hadn't gone farther. The port district and developer were seeking to push back more specific commitments on low-cost visitor accommodations until it could complete a study on the subject. Randa Coniglio, Executive Vice President for Operations at the Port, described the study as investigating demand, location and types of lower-cost accommodations "that will be successful and drive visitors to San Diego Bay." The study would come back to the Commission as a Port Master Plan Amendment, she sad. Speakers supporting the staff recommendation for one-third affordability included a UNITE-HERE union representative and a hotel worker who said he was paid minimum wage and had student loans to pay off, so he looked for low-cost public amenities to enjoy with his fianceé -- as someday he would look for ways to take his kids to the coast. Commissioner Jana Zimmer argued that as owner of the island the Port, as a public agency, had a duty to maintain public access: "When a public agency like a port is acting as a property owner and looking to maximize the revenue from that publicly owned land," she said they should consider whether they had complied fully with Coastal Act objectives. She didn't want to wait to receive the study "as a fait accompli". Commissioner Gregory Cox, the local San Diego County Supervisor on the board, asked for a broader conversation about "this whole concept" of lower-cost accommodations, but also wanted to see the Port's study results for a practical sense of what would work on the site. Others asked for clarity on the distinction between "lower cost" and genuinely low-cost accommodations; on whether an equally pleasant and comfortable vacation experience should be made available to the lower-budget public in compensation for high-priced coastal uses; on what becomes of "in-lieu" fees; on the proper percentages of hotel units to be held at lower rates or compensated for through in-lieu fees. Commissioner Martha McClure, a Del Norte County Supervisor, was also bothered by the meaning of "lower cost," which she said had a different meaning "in my part of the world" than in San Diego. Considering "the average family of four that might be on their way to Disneyland or might be on their way to Sea World or somewhere on the California Coast," she asked if they would really want to stay in a campground or hostel. While supporting approval for the Port's project, she asked for a study of what accommodations count as lower-cost and where they should be. "I'm thinking that some of these in-lieu fees go to the developer who agrees to develop and run a low-cost hotel for the next 45 years," as "a Holiday Inn Express or I don't know what." Commisison Chair Steve Kinsey of Marin agreed with her: "We shouldn't push every lower-cost accommodation into a tent." It was Kinsey who pursued the question of why Commission staff had asked for one-third of the units to be set at lower costs or compensated. He said he was uncomfortable with the answer, and wanted "a more specific way of getting there." Coniglio withdrew the application, saying "We absolutely understand your concerns and have the same concerns ourselves." With the application withdrawn, it was left that the Port would return after making progress on the study. It wasn't clear when the Commission would next discuss or draft general rules governing lower-cost accommodations but the pressure for such a discussion appeared to have risen. Ventura's 'Triangle Site' primed for development A relatively easy affordability discussion wrapped up what Ainsworth called a "long hard negotiation" in Ventura on the so-called "Triangle Site." The long-debated site, also known as the "Promenade Parcels," is an undeveloped bluff-top area isolated by railroad tracks and the inland side of Highway 101 but close to Ventura's beach and pier. It was before the Commission for approval of a requested LCP amendment to allow a promenade and other development including potentially houses or hotels. The essential term of the city-Commission agreement provided that any future proponent of residential development on the site would need to pay a $1.8 million mitigation fee to support lower-cost visitor accommodations, presumably elsewhere. The fee was based on the calculation that a 210-room hotel could be built on the site under the zoning sought, imposing a fee based on 25% of those rooms at an in-lieu fee of about $34,000 (inflation-adjusted from a 2007 study that recommended $30,000 per room). Plans under the new zoning called for construction of parking and a bluff-top promenade more strongly linking the site to the waterfront. Requirements called for parking areas accompanying new development to install infrastructure from the start for electric car charging stations, but with plans held in reserve to build the charging stations themselves only when they become needed. The city was seeking the amendment at the initiation of owner Lloyd Properties, which was seeking to either develop the property or sell it to a developer. Larry Bucher, chair of the Lloyd Properties board, offered support from the owning family for the agreement. He said the family had owned the property 75 years "and I personally have been involved in trying to do something with it" for 30 years. "We're not developers, this is something that we've owned for 75 years and we're attempting to find a solution. With this amendment I think we're on the right path." The Commission granted approval to the LCP change, but with a revision sought by City of Ventura representatives: adding the city as a party to the Memorandum of Understanding for administration of the fee, along with the Coastal Commission itself and the California Department of Parks and Recreation. Ainsworth accepted the three-party structure reluctantly, saying he didn't want disputes about state parks management within the city to "somehow get mixed up" with the new MOU discussion. Possibilities for use of the money included improvements to existing campgrounds. One possible site the city had recommended was the Emma Wood State Beach group camping area. But State Parks District Superintendent Rich Rozelle said the site was unsuitably located in the river flood plain and the whole $1.8 million could be used up running a sewer line there. The only outright opposition was in a complaint letter to the Commission by the Pacific Legal Foundation, questioning the legality of the $1.8 million fee. (Commissioner Zimmer said PLF's client wasn't clear; PLF's @TheCoastWatch Twitter feed clarified within minutes that the letter was "submitted on behalf of PLF only.") At Zimmer's suggestion, the attorney for Lloyd Properties committed on the record to making it a condition of sale for the purchaser not to contest the in-lieu fee in future. The agenda materials are at http://documents.coastal.ca.gov/reports/2014/7/Th15b-7-2014.pdf. Donald Trump's flagpole issue still unresolved For now, a 70-foot flagpole will continue to fly a large U.S. flag next to the clubhouse at the Trump National Golf Club in Rancho Palos Verdes but the flagpole's future isn't resolved. First set up in 2006, the pole was locally approved in 2007 but never got Coastal Commission approval. In this month's Coastal Commission session, the Trump organization sought retroactive approval of the flagpole together with permission for less debated improvements such as a driving range. In a two-hour debate July 9, members of the Coastal Commission more and less stoically received edification on the national flag's symbolism by Trump counsel Jill Martin and a parade of ardent public commenters. Commissioner Jana Zimmer delivered a lecture of her own on national values attached to the rule of law. But the discussion's real sticking point was unmoving insistence by Commission staff that the flagpole was restricted by a 26-foot building height restriction in the local municipal code, which is part of the Local Coastal Program. Rancho Palos Verdes town officials testified that the 26-foot limit had been intended to limit the heights of houses, whereas a flagpole was more like a radio antenna and shouldn't be regulated as to height at all. The hearing ended in an understanding: the proponents withdrew the flagpole portion of their proposal while the Commission approved the other proposed work on the property. It was left that the proponents would seek local approval -- which was clearly likely to be popular -- for a proposed Local Coastal Program revision legalizing the flagpole. The Commission would then consider waiving or reducing the filing fee -- otherwise potentially $500,000 -- to come back with the proposed LCP revision and the request to have the flagpole approved. With all eyes on the flagpole, it became a side issue that the golf course does not use recycled water and does not now have infrastructure to do so. Martin told the Commission it was "something that we are actively exploring," and an area where the company wanted to improve because it was "incredibly expensive to maintain our golf course with the water resources we have now." Also at the Coastal Commission: The Commission issued a notice of violation and a cease and desist order to Robert and Judith McCarthy, who had upset neighbors by fencing off a hiking trail in Avila Beach. The San Luis Obispo Tribune has details at http://bit.ly/1jvIUa0. The news account also describes the Commission's rejection of a county plan to add paving and a restroom to the visitor areas at Pirate's Cove Beach. After hearing from local opponents, the Commission granted only limited approval, for a coastal trail to be built linking the area to Pismo Beach. The Commission agreed to hold a separate public hearing about proposed major renovations to the former Aliso Creek Inn and Golf Course in Laguna Beach. The project proponent said the planned work would not increase the buildings' square footage but appellant Mark Fudge presented environmental, public access and affordability concerns. See http://bit.ly/1slwtR9 and http://www.lagunabeachindy.com/coastal-panel-ropes-ranch-another-review/ The Commission easily approved a movie theater conversion in the third floor of the Santa Monica Place Bloomingdale's and an office remodel by Google in the city of Venice. The Commission gave permanent approval to a temporary revetment of boulders placed to stop erosion at Port Hueneme Beach. For details see the city's own site at http://www.ci.port-hueneme.ca.us/index.aspx?nid=1000. Governor Jerry Brown has signed AB 474, broadening requirements for disclosure of Commissioners' ex parte contacts. Prior law required Commissioners to report who spoke or wrote to them and what was said. Now they must also report who if anyone the speaker was representing in making the ex parte contact and who else was "present during the communication," and must provide copies of "all text and graphic material that was part of the communication". See http://bit.ly/1jvQaTj and http://bit.ly/1sluhcc. The August Coastal Commission meeting will be a four-day session, Tuesday through Friday, rather than the ordinary three-day monthly meeting. The agenda, already available at http://coastal.ca.gov/mtgcurr.html, includes a major proposal: the I-5 expansion from San Diego to Camp Pendleton. See http://bit.ly/1zoq0FS for a preview. Other expected agenda items include the perennially debated future of the Children's Pool seal haulout area in La Jolla. At its July meeting the Commission approved, with modifications, a revised map of the eternally debated sites of public beach access areas in the city of Malibu. The maps are at the end of the agenda item's document PDF, which is at http://documents.coastal.ca.gov/reports/2014/7/Th15c-7-2014.pdf, but if you're actually looking for a place to sun yourself, it may be wise to study up on the disputes and modifications mentioned earlier in the same PDF.

The agenda for this month's Coastal Commission session, which starts tomorrow, calls for one big bookend and a lively pile of locally debated items. The bookend is the Santa Monica Mountains Local Coastal Plan (LCP). After decades of false starts and uncertainty, and a stormy April approval of the policy-level Land Use Plan (see http://www.cp-dr.com/articles/node-3474), the July agenda calls for finally sewing up the LCP by approving its final local implementation ordinances. If and when that work is done, Los Angeles County will finally receive delegated authority over coastal building permits in the steep, expensive and environmentally fragile canyon country above Malibu. Fewer issues remain to resolve than in April. The staff recommendation calls for a thicket of changes to the Local Implementation Plan (LIP) but many are procedurally required to resolve settled matters, simply because the LIP draft currently before the Commission is still the one that LA County submitted before the Commission made changes at its April hearing. Areas to be reconciled include a "special compliance program" spelling out a relatively gentle process to bring the mountains' long-established equestrian facilities up to Coastal Commission code. The agenda item is 15a on the Thursday calendar currently at http://coastal.ca.gov/mtgcurr.html. Because nothing coastal is ever particularly over, there's a Malibu LCP amendment on the same part of the agenda. But it's comparatively a minor one. More significantly, an LCP amendment in Ventura would allow for new development on the 11-acre waterfront "Triangle Site". Commission staff are recommending major changes to the proposed amendment on several Coastal Act compliance grounds, with special concern for keeping some coastal overnight visits affordable. The staff report does not mention specific hotel development plans but does say the proposal would allow a 210-room hotel to be built, and calls for a $1.8 million mitigation fee based on that room count. Development plans for the site have been debated locally for years. Elsewhere on an agenda packed with small intense items, Google is proposing an office building remodel in the city of Venice; the Santa Monica Place Bloomingdale's wants to turn space on its third floor into a movie multiplex; and Commission staff want Donald Trump's golf course in Rancho Palos Verdes to scale back its 70-foot flagpole (see http://bit.ly/1zn7QoU). Strategic Growth Council meets July 10 on cap-and-trade funds The League of California Cities notes at http://bit.ly/1jm08qB that the Strategic Growth Council will open discussion in a July 10 meeting on how to allocate the $130 million in cap-and-trade funds that it was given to administer under the 2014-15 state budget. The agenda, at http://www.sgc.ca.gov/docs/July_10_Council_Agenda.pdf, includes an action item on delegation of powers. A brief staff report describes the statutory framework for the allocations at http://www.sgc.ca.gov/docs/Agenda_Item3_AHSC_Admin_Staff_Report.pdf. It notes that applicable law requires half of all Affordable Housing and Sustainable Communities funds to be used "to provide housing opportunities for lower income households." A brief staff recommendation calls for the SGC to delegate powers to the state Department of Housing and Community Development to "implement the housing, transportation and infrastructure components of this program," and to delegate program components involving agricultural land preservation to the state Natural Resources Agency or Department of Conservation. The recommendation concludes: "This implementation will include, but not limited to, working with the Council to develop program guidelines including grants and loans, evaluating applications, preparing agreements, monitoring agreement implementation, reporting and amendments." For prior coverage of the cap-and-trade budget agreement see http://www.cp-dr.com/articles/node-3509. Westlands Water District contracts found exempt from CEQA California's Fifth Appellate District approved the Westlands Water District's 2012 renewal contracts with the U.S. Bureau of Reclamation, saying the changes they represented were exempt from CEQA review sought by environmentalist challengers. Per the decision's text, Westlands serves 600,000 acres of San Joaquin Valley farmland and has held rights over about 1 million annual acre-feet of federal Central Valley Project water. The case is North Coast Rivers Alliance v. Westlands Water District . The July 3 ruling is at http://www.courts.ca.gov/opinions/documents/F067383.PDF. Cupertino General Plan amendments out for review Proposed General Plan and housing element updates for the city of Cupertino are available for comment through August 1. Mercury News coverage is at http://bit.ly/1md0IpV and the plan revision site is at http://www.cupertinogpa.org/. Goals of the housing element include energy conservation and encouraging mixed-use development to work toward the city's Regional Housing Needs Allocation (RHNA) goal of 1064 housing units at different levels of affordability. Issues at the most recent study session in April included whether second units at existing single-family houses are an appropriate way to meet affordable housing goals, or what can be done to encourage mixed-use development and construction of small, affordable apartments. A staff commentary said only 31 second units had been built in Cupertino in the past seven years. San Pablo Avenue plan goes to hearings An Oakland Tribune report at http://bit.ly/1lRMNRf sets the stage for tomorrow night's public meeting on the draft EIR for the San Pablo Avenue Specific Plan. A collaborative effort between El Cerrito and Richmond, the plan would call for landscaping, polishing and pedestrian/bike amenities along 2.5 miles of commercial corridor.   San Joaquin COG approves transportation plan The Stockton Record has details at http://bit.ly/1mFODuJ on an $11 billion transportation plan adopted by the San Joaquin Council of Governments. Following new sustainability requirements, the plan proposes to protect 10,000 acres of prime farmland, add bike lanes, improve sidewalks and expand transit. The Regional Transportation Plan can be viewed under "Programs" at http://www.sjcog.org/DocumentCenter/Index/20. Moscone Center expansion nearing approval A plan to expand San Francisco's Moscone Center and environs, mostly upward along Howard Street, has SF Chronicle reviewer John King encouraged about recent plan revisions at http://bit.ly/1mbGo37. However, minutes from the June 5 Planning Commission meeting say John Elberling of the community development nonprofit TODCO told commissioners to "mitigate or litigate" pedestrian safety aspects. The current plan would raise heights and densities but would humanize streetscapes, at least by comparison with earlier designs. Moscone Center is part of the Yerba Buena complex occupying the large city blocks north and south of Howard Street between Third and Fourth Streets in San Francisco's downtown South of Market neighborhood. The complex at present invites approach only from a few directions, mostly through its landscaped northeastern corner at Mission and Third. It presents less welcoming walls to the public along much of its perimeter. When those walls were built, they faced into poorer parts of South of Market. While the neighborhood still harbors residents at many income levels, Moscone Center is now at the center of San Francisco's tech-driven real estate boom, and the Fourth Street subway extension is under construction along its west edge. The SF Business Times described commercial hopes for the expanded convention facilities at http://bit.ly/1n350NX. More recently Andrew Ross of the SF Chron 's editorial page did the same at http://bit.ly/1znmLj8. A city tourism press release said construction was expected to begin this December: http://bit.ly/1mde45H The Planning Commission reviewed but did not vote on the plan June 5. Minutes from that hearing, with a link to detailed agenda packet materials, are at http://www.sf-planning.org/index.aspx?page=3857. The comment period closed June 16. The official expansion site is at http://mosconeexpansion.com/. Direct links to the EIR are at http://www.sf-planning.org/index.aspx?page=1828. The Yerba Buena Neighborhood Consortium, which includes TODCO, had posted criticisms of the original Moscone Center expansion plan at http://bit.ly/1s2753s, including an argument that the plan did too little for existing pedestrian safety and sidewalk crowding. TODCO's own less specific proposals for the area, including Moscone Center, are at http://www.todcocentralsomacommunityplan.org/our-plan/. TODCO's role is historically resonant because it owes its creation to the 40-year-old conflict over demolitions of low-income and last-resort housing at the Yerba Buena site, which had been San Francisco's Skid Row. The organization now primarily owns and works with affordable housing properties but it also has taken a role urging protections for existing low-income residents in the city's transportation-focused "Central SoMa Plan" for the South of Market area from Moscone Center west to Sixth Street. (See http://www.sf-planning.org/index.aspx?page=2557.)  A separate group, Save Yerba Buena Gardens, posted a statement this week at http://www.saveyerbabuenagardens.org/ saying it may seek signatures for a ballot measure protecting the public park that was built as part of the site's 20th-century redevelopment on the north side of the Yerba Buena complex. And as you've probably heard by now: The Oakland City Council will vote July 29 on whether to take the new Oakland A's Coliseum deal. Council members are divided on whether to approve the plan, and local officials disagree on whether the Council even has power to stop it. The plan won approval from the Oakland-Alameda County Coliseum Authority board after owner Lew Wolff threatened to take his team elsewhere. For San Francisco Chronicle coverage see http://bit.ly/U1HDMf. Legislators are still negotiating possible revisions to the much-criticized $11 billion water bond measure, first drafted in 2009, that is still scheduled to appear on this November's state ballot. The statutory deadline has passed for new November ballot measures, but the Bee reports in a helpful background piece at http://bit.ly/1stbs4g that waivers are possible to swap in a fresher, possibly more popular proposal. The Mercury News reported at http://bit.ly/1kyGqmk that the city of Milpitas has won a court ruling that will delay construction of a trench for the BART transit extension into Silicon Valley. The city opposes the transit project's proposed closure of a major local artery, Dixon Landing Road. The State Water Resources Control Board has already taken up administration of the state's drinking water under authority transferred to it from the Department of Public Health by a state budget bill. For materials on the transition see http://www.swrcb.ca.gov/drinkingwater/index.shtml. Per the Association of California Water Agencies, long-term drinking water administrator Cindy Forbes has been transferred from the old office to the new one, now to serve as deputy director of the State Water Board's Division of Drinking Water. (See http://bit.ly/1nbt8Rt.) Business groups and legislators campaigned intensely in early July against a fuels element of the California cap-and-trade program that they call a hidden gas tax. See http://bit.ly/1lCAgkK for San Bernardino Sun coverage of an Ontario press conference last week. The Sacramento Bee at http://bit.ly/1vmj4FA has more on the industry lobbying origins of the campaign.

A planning change to reconfigure San Jose Airport for more corporate jet traffic does not need full environmental review under a state appellate case newly ordered published. The planning document challenged by Citizens Against Airport Pollution (CAAP) was approved by the City Council in 2010 as the eighth addendum to the EIR for San Jose's Airport Master Plan. It responded to projections for slower growth in the airport's cargo and passenger capacity than previously expected, and changed the planned use of a 44-acre area from air cargo facilities to general aviation "in order to accommodate the forecast that large corporate jets will comprise the majority of general aviation". Further, it called for modifying two taxiways to better accept corporate jets. City staff argued there would be no new significant environmental impacts beyond those addressed in previous planning rounds. CAAP claimed the modified plan needed assessment in a supplemental or subsequent EIR because it called for construction work affecting "noise, air pollution and... burrowing owl habitat". The group additionally argued new rules on greenhouse gases (GHG) and climate change assessments had not been properly applied. In a three-judge opinion authored by Justice Patricia Bamattre-Manoukain, the Sixth District Court of Appeal upheld the trial court's findings and its rejection of the environmental challenge. The trial court had found air and noise impacts from the most recent iteration of the plan were no worse than envisioned in previously approved versions and, in the appellate court's paraphrase, "the effects of greenhouse gases do not constitute new information that could not have been known at the time the 1997 EIR was certified as complete." It had found effects on the owl habitat from the proposed work on the taxiways (again in paraphrase) "could be mitigated, and therefore the severity of the previously identified impact on the burrowing owls would not be increased." The court declined to rule on the city's claim that CAAP had failed to exhaust its administrative remedies, where CAAP claimed the addendum process was not sufficiently formal to offer remedies to exhaust. The process amounted to meetings hosted by the city, followed by a notice of determination, while CAAP had responded with letters making "general comments" only. On the noise standard issue, the court followed Santa Teresa Citizen Action Group v. City of San Jose , 114 Cal. App. 4th 689 (2003) and Citizens for Responsible Equitable Environmental Development (CREED) v. City of San Diego , 196 Cal. App. 4th 515, 532 (2011) for the rule that an EIR must be conducted initially if there is substantial evidence for significant environmental impact -- but after environmental review has been conducted, "the statutory presumption flips in favor of the developer against further review." At that point, said the court, the question becomes whether the record contains substantial evidence for a finding that the proposed changes are *not* substantial enough to require a supplemental EIR. Thence the court found substantial evidence for the eighth addendum's conclusion that the new changes would not result in substantial noise impacts. CAAP argued for a fresh assessment of GHG emissions based on new legal requirements added in that area since the 1997 EIR and 2003 Supplemental EIR. The appellate court saw no need, noting that awareness and regulation of the GHG problem dated back to the 1970s. The court dealt with other air quality matters briefly, noting a finding that daily aircraft operations were actually projected to decrease from 2010 to 2027. The parties agreed on one definite impact: the new plan would cause the loss of four acres of burrowing owl habitat. But again flipping the presumption, the court found substantial evidence that the changed construction plans, as mitigated under an existing plan, would not make enough difference to call for a supplemental EIR. The city's 1997 "Burrowing Owl Management Plan" called for designating four substitute acres as "owl management area," moving previously created artificial owl burrows away from the taxiway work, and using one-way doors to keep owls from becoming trapped in their burrows by construction. CAAP argued, however, that even more detailed owl habitat mitigation plans had been found inadequate in San Joaquin Raptor Rescue Center v. County of Merced , 149 Cal. App. 4th 645 (2007). The court said that case "did not involve review of an EIR addendum and is otherwise distinguishable." The airport case is CAAP v. City of San Jose , available at http://www.courts.ca.gov/opinions/documents/H038781.PDF The decision was first made public June 6, then ordered published July 2. The publication order cited requests from the real estate law offices of Remy, Moose, Manley, LLP and Nossaman Guthner Knox, and from the Silicon Valley Leadership Group.