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UCLA Extension convened its annual Land Use Law and Planning Conference last week in Los Angeles. As always, it was a bonanza of practical information and insights for lawyers and planners who navigate California's insanely complex web of laws and court cases that govern how we build -- and don't build -- in the state.  As the panelists themselves noted, there was far too much news to convey -- about what happened in 2014 and what is on the horizon for 2015 -- than a single day's worth of presentations could cover. Nonetheless, they did an admirable job of presenting brief summaries of relevant guidelines, court decisions, and legislative actions that will affect planners in 2015.  Below are selections from the conference's CEQA update, p resented by Margaret Sohagi, Amy Bricker, and Michelle Oulette . Please refer to text of specific cases for full details.  Exemptions San Francisco Beautiful v. City and County of San Francisco 226 Cal.App.4th 2012 Categorical exemption for small structures applies to installation of metal cabinets on city sidewalks.  Tuolumne Jobs and Small Business Alliance v. Superior Court 59 Cal.App.4th 1059 A city can directly adopt a voter-sponsored initiative without conducting review under CEQA.  North Coast Rivers Alliance vs. Westlands Water District 227 Cal.App.4th 832 Interim contract to provide water exempt because they are considered pre-CEQA projects and continued operation of existing facilities.  Picayune Rancheria of Chukchansi Indians v. Brown 229 Cal.App.4th 1416 Tribe claimed that governor did not comply with CEQA in approving casino development of competing tribe; court ruled that governor is not a "public agency" under CEQA.  Types of CEQA Documents Citizens Against Airport Pollution vs. City of San Jose 227 Cal.App.4th 788 Impacts of proposed amendments to airport master plan deemed not substantial; therefore, no need to determine whether 1997 EIR was programmatic or project-level.  Citizens for Sustainable Treasure Island v City and County of San Francisco 227 Cal.App.4th 1036 Challenge that the city abused discretion by preparing project-level EIR, rather than programmatic EIR, improperly focused on form over substance.  Thresholds of Significance Trisha Lee Lotus v. Department of Transportation 223 Cap.App.4th 645 EIR analysis determined inadequate for failing to identify levels of significance even though project was self-mitigating.  Adequacy of IS/MND Citizens for the Restoration of L Street v. City of Fresno 229 Cal.App.4th 340 Court invalidated IS/MND for demolition of historic structure because city did not delegate authority to historic preservation committee to act as lead agency.  Rominger v. County of Colusa 229 Cal.App.4th 690 County claimed that subdivision approval was not subject to CEQA; court ruled that even if a subdivision does not include a plan, it is a project under CEQA.  Adequacy of EIR Town of Atherton v Calif. High-Speed Rail Authority 228 Cal.App.4th 314 Court held that market participation doctrine was an exception to preemption; authority properly rejected infeasible alternatives.  SPRAWLDEF v. San Francisco By Conservation and Development Commission 226 Cal.App.4th 905 Substantial evidence supported commission's determination that alternatives to proposed landfill could be economically infeasible using "reasonable person" test.  California Clean Energy Committee v. City of Woodland 220 Cal.App.4th 1325 EIR for retail center inadequate because of inadequate measures to counteract economic losses in city's downtown.  Citizens Opposing a Dangerous Environment v. County of Kern 228 Cal.App.4th 360 Mitigation requiring FAA to review wind turbines was legal.  Paulek vs. CA Dept. of Water Resources 231 Cal.App.4th 35 Lead agency referenced discussion in EIR and was not required to repeat that discussion in the response. Cleveland National Forest et al. v. San Diego Association of Governments 4th District Case No. D063288 SANDAG's EIR rejected for failing to evaluate plan's consistency with executive order setting GHG emissions goals; EIR's analysis and mitigation of air quality and agricultural impacts inadequate; alternatives analysis deficient for failure to consider alternatives that reduce VMT.  Sierra Club v. County of San Diego Fourth District Case No. D064243 County did not adopt enforceable GHG reduction measures in climate plan.  Adequacy of Functional Equivalent Center for Biological Diversity, et al. v. Calif. Dept. of Forestry and Fire Projection Cal.App.LEXIS 1181 Timber management plan complied with CEQA.  Administrative Record  San Francisco Tomorrow v. City and County of San Francisco 228 Cal.App.4th 1239 Transcripts of board committee hearings that occurred before board's final decision on a project are part of administrative record.  Procedural Issues Citizens for a Green San Mateo v. San Mateo Community College District 226 Cal.App.4th 1572 Citizen challenge to tree removal barred under both 30-day statute of limitations and 180-day statute of limitations.  Ventura Foothills Neighbors v. County of Ventura 232 Cal.App.4th 429 Citizen suit to challenge county's EIR addendum not barred by 30-day statute of limitations; change in building height ruled substantial change requiring preparation of supplemental EIR, not an addendum.  Saltonstall v. City of Sacramento 231 Cal.App.4th 837 Passage of SB 743 to expedite litigation procedures for new basketball arena did not violate separation of powers because court considered it an amendment to CEQA.

As the inane "debate" over climate change drags on in the more benighted corners of our republic (Washington, D.C., included), it's becoming abundantly clear that California is no longer the place where America's fruits, nuts, and loose ends come to rest. I've been on the periphery of the stateside discussion of SB 375 for the past two years, so I know that it's not news to say that there have been many earnest, productive discussions about it across the state. Even so, I'll still take a moment to say how gratifying it is to witness an adult discussion on a topic that inspires temper tantrums in so many of our national leaders. We live in a parallel universe where people talk seriously about climate change, solutions, and economic impacts.  Yesterday's rendition, at the VerdeXchange "Green Marketmakers" Conference, featured former State Senate President Pro Tem and SB 375 author Darrel Steinberg as moderator, and Gail Goldberg of the Urban Land Institute, Lauren Faber of Environmental Defense Fund Jonathan Parfery of Climate Resolve , Tanya Peacock of the Southern California Gas Company , and Jim Wunderman of the Bay Area Council as panelists. A hand-picked panel, to be sure, but it still represented a perspectives issues ranging from environmental justice to development to utilities. (Disclosure: I used to work for VerdeXchange Chairman David Abel.) What's great about a panel like this is that when everyone agrees -- or at least accepts -- that the state must do something about climate change and when you understand that laws like SB 375 can be implemented well or badly and that funds like those from AB 32's cap and trade program can be spent well or badly, you get a great, nuanced discussion among people who, whatever their differences may be, genuinely have the state's best interests in mind. And there's a lot that we can do with the roughly $1 billion in annual cap-and-trade funds that are going to be distributed throughout the state (as negotiated in the 2014 budget ). People with true capitalist persuasions will recognize this as an opportunity. Again, I know this approach to climate change isn't news in California. But imagine what this panel would be like if it was at a conference center in Tulsa rather than one in downtown L.A. Here are a few highlights of the genuine debates that policymakers and members of organizations like the Strategic Growth Council may face as these policies evolve and funds get disbursed. Ideally, these funds can spur further investment and create the types of multipliers and positive externalities that would give Libertarians heart attacks. Statewide Equity:  $1.1 billion is a lot of money, but not when it's spread among 38 million people and hundreds of jurisdictions. The demographic split between northern and southern California -- separating the southern 19 million from the northern -- is, according to Parfery, roughly contiguous with Los Angeles' Wilshire Boulevard. He encourages lawmakers to keep this counterintuitive boundary in mind. Disadvantaged Communities:  25 percent of cap-and-trade funds must go to disadvantaged communities. Now policymakers must figure out what qualifies as "disadvantaged," ensure that those funds actually go to those communities -- and provide them with due benefits. Gentrification & Displacement:  SB 375 isn't only about transit oriented development. But TOD is a big part of it, and the prospect of gentrification is the most interesting and controversial potential impact. Critics argue that shiny new TOD's will attract wealthier residents who will displace poor residents. Goldberg noted that if this happens, it's doubly ironic, since new, higher-income residents may be less likely to use public transit while lower-income refugees may end up getting pushed into the auto-centric periphery. Regionalism:  Wunderman's participation brought up one of the more subtle, but crucial, issues surrounding intra-state governance. Increasing focus on climate change and regional planning requires greater regional coordination, not just among governments but also among agencies, businesses, and stakeholder groups. Peacock noted that SB 375 can provide the financial framework for a weightier version of regionalism. CEQA:  SB 375 is at the heart of the debate over CEQA reform. If the threat of CEQA-based lawsuits curtails the development of TOD's and high-density housing, then the state's two most powerful environmental laws are working at cross-purposes. Of course, some expect that glaciers will form in Death Valley before significant CEQA reform arrives. High-Speed Rail:  California's high-speed rail system will "change the way we operate as a state," according to Wunderman. It will have direct impacts on the cities with HSR stations -- especially those of the Central Valley -- and the system could change residential and commuting patterns throughout the state. If Bakersfield can become a bedroom community of L.A., then planners have to get going. VMT's vs GHG's:  Ever since the Model T rolled out, and especially since Americans fell in love with SUVs and other gas-guzzlers, reduction in pollution and GHG's has been synonymous with lowering of aggregate vehicle miles traveled. Now that some cars, including electric vehicles, emit far less pollution, ought the state still discourage driving and are the tools of SB 375 sufficient to do so? These questions are vexing, to say the least. But, contrary to the forces of ignorance that are raging throughout this country, we are fortunate to have the chance to debate them, even if we're destined to come up with a few wrong answers along the way. You might be interested to know how many times federal climate change policy was mentioned. The answer: zero. The federal government, for obvious, lamentable reasons, is a nonentity. A newly arrived alien would never know that California isn't its own country. Faber emphasized that foreign governments are now looking to California as a model while, apparently, our own federal government is rendered irrelevant. I imagine that a lot of the same folks who deny the existence of climate change would consider that a victory.

As the inane "debate" over climate change drags on in the more ignorant corners of our republic (Washington, D.C., included), it's becoming abundantly clear that California is no longer the place where America's fruits, nuts, and loose ends come to rest. I've been on the periphery of the stateside discussion of SB 375 for the past two years, so I know that it's not news to say that there have been many earnest, productive discussions about it across the state. Even so, I'll still take a moment to say how gratifying it is to witness an adult discussion on a topic that inspires temper tantrums in so many of our national leaders. We live in a parallel universe where people talk seriously about climate change, solutions, and economic impacts.  Yesterday's rendition, at the VerdeXchange "Green Marketmakers" Conference, featured former State Senate President Pro Tem and SB 375 author Darrel Steinberg as moderator, and Gail Goldberg of the Urban Land Institute, Lauren Faber of Environmental Defense Fund Jonathan Parfery of Climate Resolve, Tanya Peacock of the Gas Company, and Jim Wunderman of the Bay Area Council as panelists. A hand-picked panel, to be sure, but it still represented a perspectives issues ranging from environmental justice to development to utilities. (Disclosure: I used to work for VerdeXchange Chairman David Abel.) What's great about a panel like this is that when everyone agrees – or at least accepts – that the state must do something about climate change and when you understand that laws like SB 375 can be implemented well or badly and that funds like those from AB 32's cap and trade program can be spent well or badly, you get a great, nuanced discussion among people who, whatever their differences may be, genuinely have the state's best interests in mind. And there's a lot that we can do with the roughly $1 billion in annual cap-and-trade funds that are going to be distributed throughout the state. People with true capitalist persuasions will recognize this as an opportunity. Again, I know this approach to climate change isn't news in California. But just imagine what this panel would be like if it was at a conference center in Tulsa rather than one in downtown L.A. Here are a few highlights of the genuine debates that policymakers and members of organizations like the Strategic Growth Council may face as these policies evolve and funds get disbursed. Ideally, these funds can spur further investment and create the types of multipliers and positive externalities that would give Libertarians heart attacks. Statewide Equity:  $1.1 billion is a lot of money, but not when it's spread among 38 million people and hundreds of jurisdictions. The demographic split between northern and southern California – separating the southern 19 million from the northern – is, according to Parfery, roughly contiguous with Los Angeles' Wilshire Boulevard. He encourages lawmakers to keep this counterintuitive boundary in mind. Disadvantaged Communities:  At least 25 percent DELEON LEGISLATION of cap-and-trade funds must go to disadvantaged communities. Now policymakers must ensure that those funds actually go to disadvantaged communities – and provide them with due benefits. Gentrification & Displacement:  SB 375 isn't only about transit oriented development. But TOD is a big part of it, and the prospect of gentrification is the most interesting and controversial potential impact. Critics argue that shiny new TOD's will attract wealthier residents who will displace poor residents. Goldberg noted that if this happens, it's doubly ironic, since new, higher-income residents may be less likely to use public transit while lower-income refugees may end up getting pushed into the auto-centric periphery. Regionalism:  Wunderman's participation brought up one of the more subtle, but crucial, issues surrounding intra-state governance. Increasing focus on climate change and regional planning requires greater regional coordination, not just among governments but also among agencies, businesses, and stakeholder groups. Peacock noted that SB 375 can provide the financial framework for a weightier version of regionalism. CEQA:  SB 375 is at the heart of the debate over CEQA reform. If the threat of CEQA-based lawsuits curtails the development of TOD's and high-density housing, then the state's two most powerful environmental laws are working at cross-purposes. Of course, some expect that glaciers will form in Death Valley before significant CEQA reform arrives. High-Speed Rail:  California's high-speed rail system will "change the way we operate as a state," according to Wunderman. It will have direct impacts on the cities with HSR stations – especially those of the Central Valley – and the system could change residential and commuting patterns throughout the state. If Bakersfield can become a bedroom community of L.A., then planners have to get going. VMT's vs GHG's:  Innovations in engine technologies might throw a wrench in SB 375, so to speak. Ever since the Model T \t\t rolled out, and especially since Americans fell in love with SUVs and other gas-guzzlers, reduction in pollution and GHG's has \t been synonymous with lowering of aggregate vehicle miles traveled. Now that some cars, including electric vehicles, emit far less \t pollution, ought the state still discourage driving and are the tools of SB 375 sufficient to do so? These questions are vexing, to say the least. But it's incredible that we have the chance to debate them, even if we're destined to come up with a few wrong answers along the way. You might be interested to know how many times federal climate change policy was mentioned. The answer: zero. The federal government, for obvious, lamentable reasons, is a nonentity. A newly arrived alien would never know that California isn't its own country. Faber emphasized that foreign governments are now looking to California as a model while, apparently, our own federal government is rendered irrelevant. I imagine that a lot of the same folks who deny the existence of climate change would consider that a victory.

In addition to the state Supreme Court dispute on the California Department of Fish and Wildlife's action, three other Newhall Ranch cases continue in litigation, all brought by plaintiffs and attorneys overlapping with the group before the high court. (See http://www.cp-dr.com/articles/node-3461 for more links on these cases.) Advocates filed suit in 2011 challenging Los Angeles County's approval of the project-level EIR for the Landmark Village phase of the project. The writ petition in that matter, No. BS136549, was thrown out by Los Angeles Superior Court Judge John A. Torribio in February 2014 and was appealed in May 2014. In the Second District Court of Appeal the matter was assigned to the Fifth Division. Now captioned as Friends of the Santa Clara River v. County of Los Angeles , Case No. B256125, it was argued and submitted January 6, 2015. The Mission Village phase received county approval for its January project-level EIR approval in 2012. It was challenged as of June 2012 . After two years' litigation in Los Angeles County Superior Court, the writ petition, No. BS138001, was denied in June 2014. The petitioners appealed in August 2014. Their attempt to be reassigned to a Second District division other than the Fifth was rejected in October. The case continues as CA Native Plant Society v. County of Los Angeles , No. B258090. A similar group of advocates filed a federal complaint March 6 in the U.S. Central District of California, challenging the federal side of the parallel state and federal review processes on environmental resources. The suit was primarily against the Army Corps of Engineers but initially also against the federal Environmental Protection Agency (EPA), objecting to the EIS certification and the Section 404 permit issued under the Clean Water Act, and alleging noncompliance with other environmental laws and the National Historic Preservation Act. The Newhall Land and Farming Company joined the case as intervenor. It is Center for Biological Diversity v. U.S. Army Corps of Engineers , Case No. 2:14-cv-01667-PSG-CW, initially assigned to Judge Audrey B. Collins but more recently to Judge Philip S. Gutierrez and Magistrate Judge Carla Woehrle. Plaintiffs in the federal case responded to defendants' opening dismissal motions with an amended complaint last summer. On September 26 the court narrowed the scope of the case, dismissing the EPA and some individual officials as defendants, but allowed claims against the Corps to go forward. Preliminary steps were taken toward summary judgment motions over the winter. As of early January 2015, plaintiffs had amended their complaint a second time per agreement among the parties. The court meanwhile required that a mediation attempt be made by the end of April. More information on the Newhall Ranch controversy is readily available online, though sometimes difficult to parse because information and arguments have traveled in so many braided channels for so long. CDFW has its own environmental review page for the project with an exceptionally clear site map. The developer, Newhall Land and Farming Co., has posted a promotional site showing what homebuyers and others could gain from the project. The Los Angeles County Department of Regional Planning, saddled with Newhall review processes for a generation, has relevant Web pages including the specific plan , the initial Landmark Village phase, the second-calendared Mission Village phase , and the overarching Santa Clarita Valley Area Plan . The environmental and community groups that have fought the project for a generation each maintain their own Web sites, but many point to a presentation, " Wildlands of the Santa Clara River Watershed " (11.3 MB), using maps and photos to show what the ecosystem could lose. Lynne Plambeck, who has fought the Newhall Ranch proposal since its start as head of the Santa Clarita Organization for Planning and the Environment (SCOPE) said, "It's too late for the LA River. They can't take the houses out. We have the opportunity to not put the houses in." Editor's Note: The CP&DR e-mail blast of Feb. 3, 2015 contained a misstatement; only one of the four pending Newhall Ranch court cases is before the California Supreme Court.

The Newhall Ranch environmental review litigation, itself a mighty matter of land use legend, has an important strand of its multiply braided conflicts awaiting an oral argument date before the state Supreme Court.  The parties' briefing is complete. The court has accepted a deep layer of amicus briefs from state-level land use players. And with the confirmation of Justice Leondra Kruger, the court has finally returned to full membership. So the court has little reason to delay setting an argument date. Disputes over the proposed Newhall Ranch planned development have been a mainstay topic in Southern California land use politics for two decades . If completed as envisioned, the project would create a city of nearly 60,000 people in northwestern Los Angeles County. The site is at the edge of Los Angeles' current urban footprint, along the Santa Clara River north of the Six Flags amusement park, southwest of the junction between Interstate 5 and Highway 126. Debates about the Newhall Ranch site affect the Santa Clara River system, described by its advocates as "one of the last free flowing natural riparian systems left in southern California." They also provide occasions for public conversation in Los Angeles about the limits of suburban expansion.  The case before the state Supreme Court, Center for Biological Diversity v. California Department of Fish and Game , No. S217763, is one of the four currently litigated Newhall Ranch cases. In accepting the case, the high court granted review only on three questions out of a larger dispute. The eastward end of the Newhall Ranch project site along the Santa Clara River, looking west The first question asks if environmental mitigations that involve catching and moving fish are acceptable for one of California's very few "fully protected" species, the Unarmored Threespine Stickleback.  The second asks if it was proper for a state-level lead agency to treat public comments as late because they came in after the draft environmental review (DEIR) stage -- where the only subsequent comment period was offered by a federal agency, in the concurrent process for its related final environmental impact statement (EIS).  The third question asks whether the California Department of Fish and Wildlife (CDFW, formerly the Department of Fish and Game) properly accepted Newhall's choice of a baseline to measure its promised greenhouse gas (GHG) emissions reductions under AB 32. In an approach derived from existing Air Resources Board practices, Newhall set as its baseline an unbuilt "business as usual" version of the project, and measured GHG "reductions" by comparing that to the actual plan. Environmental advocates argue this was unfairly manipulating expectations by setting the opening bar too high.  The Newhall Ranch project began its first review processes in 1994, starting environmental review in 1996. The county approved a programmatic EIR in 2003 for a specific plan covering the whole huge project of almost 12,000 acres. That version proposed up to 21,308 dwelling units to house up to 57,903 people in five "villages" with mixed-use development, business parks, designated parks and open space, several schools and a golf course. More recent designs call for 19,812 residential units on a developed area of 2,587 acres of which 2,221 would be residential.  The 2003 specific plan's programmatic EIR was long ago settled as approved, but it looked toward future state and federal environmental reviews and to project EIRs for individual phases of the big plan. Those have provided grist for dispute ever since. The Newhall Ranch issues now before the State Supreme Court concern state-level permits and environmental planning approvals issued in a joint state-federal review process. The state's lead agency was CDFW, working under the California Environmental Quality Act (CEQA). The lead federal agency was the U.S. Army Corps of Engineers, working under the National Environmental Protection Act (NEPA) to prepare an EIS and issue federal permits and approvals. CDFW in 2010 approved an EIR and EIS, a project-wide resource management plan, a large-scale conservation plan for preserving the endangered San Fernando Valley Spineflower, a plan to mitigate the intended alteration of streambeds, and two incidental take permits for damage to endangered species that the approved actions might cause. Environmental and community groups, including advocates for Native American cultural sites, challenged the approvals. The Santa Clara River, home to the unarmored three-spined stickleback, not far upstream from the Newhall Ranch site, during the recent drought. The river's water level and surrounding vegetation vary dramatically with rainfall conditions. The initial Superior Court opinion on the matter, by Superior Court Judge Ann I. Jones, underlies the current California Supreme Court appeal. Her unhurried 38-page opinion discussed the environmental value and political/procedural history of the Newhall Ranch, arriving at a ruling in petitioners' favor. Jones' impartiality was later questioned by the Newhall Ranch in a formal challenge in late 2012, in part because of her participation in a land-use dispute in her own neighborhood. The motion to disqualify Judge Jones was rejected in a January 2013 ruling by Judge Glenda Sanders of Orange County, but Jones remains assigned to other matters, making it unlikely she will hear more Newhall Ranch cases. The appellate decision, which sided with Newhall Ranch, was by Justice Paul Turner with concurrence by Justices Richard Mosk and Sandy Kriegler, all of the Second District's Fifth Division. Turner's 113-page opinion included an extended, highly technical discussion of appropriate GHG reductions under AB 32. That analysis, Section IV.G., was much discussed on environmental law firms' blogs, including Stoel Rives' , but the appellate court insisted on excluding it from publication. It is not before the California Supreme Court. Instead, the high court granted review on three relatively narrow issues: First, the court will consider whether "take" of unarmored threespine stickleback is acceptable as part of a mitigation program to protect the endangered fish by moving them from one part of the river to another. Plaintiffs, represented by senior attorneys with the Center for Biological Diversity, a UCLA law school clinic and others, contend that stickleback may not be caught even for mitigation purposes because they belong to one of a few highly fragile populations covered by the Fully Protected Species Laws, Cal. Fish & Game Code Sec. 5515. They argue that catching stickleback is in itself an impermissible "take", and note that in practice some would die in being caught. To plaintiffs, Sec. 5515 supplements the California Endangered Species Act (CESA) by adding additional protections for "fully protected" species.  But CDFW contends that it properly chose to allow "incidental take" permits under CESA in connection with relocating stickleback, in an exercise of both administrative discretion and "common sense" for which it claims judicial deference. Newhall Ranch, whose attorneys include Mark Dillon of Gatzke Dillon & Ballance LLP and Miriam Vogel of Morrison & Foerster, argues that the U.S. Fish and Wildlife Service, which would perform the relocation work, has independent federal authority to do so. In one of the many filed amicus briefs, attorneys with Cox, Castle & Nicholson including Michael Zischke, writing for building industry and real estate groups, argued that CDFW and the appellate court followed the settled interpretation of "take", whereas adopting Petitioners' approach would "paralyze" CDFW and stop all development on land harboring any of the 37 "fully protected species." Second, the court will consider whether comments responding to the final EIR were raised soon enough to meet CEQA's exhaustion of remedies standard. The comments concerned Chumash and Tataviam Native American cultural resources on the project site and expected runoff impacts on California Steelhead. Plaintiffs contend they raised these objections timely on the final EIR/EIS if not during the Draft EIR comment period. (A November 25 reply brief also contends the steelhead comments were raised sufficiently during the draft EIR period.) Defendants contend that, although plaintiffs did comment on those issues, and received responses to their comments from Newhall Ranch, that happened in a comment process that was required and provided only under NEPA, for the final EIS, and not under CEQA for the final EIR. Defendants argue in the alternative that the appellate court rejected the cultural resource and steelhead claims on the merits, and that the state supreme court should do the same. In an amicus brief, several California tribes argued against an over-strict reading of timeliness provisions. In addition to more technical arguments, the brief argued that if early comment cutoffs became widespread, that could worsen tribes' reluctance to participate in state rather than federal environmental processes. An amicus brief by Susan Brandt-Hawley for the Planning and Conservation League argued in part that an agency's decision not to offer a comment period or hearing on a final EIR "cannot preclude meaningful public participation" nor justify excluding evidence offered before EIR/EIS certification. The Zischke brief included an argument that "CEQA does not direct agencies when they must hold hearings, and in fact CEQA does not require hearings at all." Third, the court will consider if CDFW properly allowed Newhall Ranch to calculate its planned GHG reductions based on differences between the actual plan and a projected "business as usual" version of the project design. Plaintiffs argue that CDFW improperly allowed Newhall Ranch to game the GHG reduction requirements under AB 32, as implemented by CEQA Guidelines Sec. 15064.4 , by projecting the emissions from a hypothetical exaggerated, legally impermissible version of the project, treating that as its baseline, and counting as a GHG "reduction" the 31% difference between that and the actual plan's projected emissions. (The projected reduced emission would still be 269,000 metric tons of GHGs per year.) CDFW made a compact argument that it acted within its discretion to select methodologies but mainly stepped back and let Newhall Ranch argue the GHG issue under a "division of labor". In addition to the discretion argument, Newhall argued that its analysis complied with Sec. 15064.4, and that, while disclosing current existing conditions on the site -- now largely farmland -- it acted on the realistic assumption that populations grow.  Newhall Ranch argued that the "business-as-usual" baseline followed the Air Resources Board's approach to the AB 32 requirement of per capita GHG reductions from 1990 levels to 2020 levels. It said the ARB had set the example of "assuming emissions controls remain static between 1990 and 2020" as "an analytical construct." The developer argued the project should get credit for its environmentally conscious features, including more than 10,000 acres of open space, plans to protect drainages and wetlands, energy efficiency, rooftop solar, provisions for public transit, walking and biking trails, and "close proximity of homes to jobs and services".  A Sierra Club amicus brief focused on the GHG issue, arguing that the "business as usual" baseline was "predicated on an alternate reality" in which GHG emissions had not been further regulated since 2005. The Sierra Club amicus presumed that Executive Order S-3-05 created a substantive emissions reduction target -- a position placed in doubt by the ruling in Cleveland National Forest Foundation v. San Diego Association of Governments , discussed at http://www.cp-dr.com/articles/node-3632 . An amicus brief by attorneys with the Nossaman and Best, Best & Krieger firms, among others, amplified several CDFW and Newhall arguments on the GHG review baseline, then closed by arguing that a ruling for plaintiffs would be disruptive. It sided with Justice Patricia Benke's dissent in the San Diego matter, arguing as Benke had that too much executive power should not interfere with agency discretion.

In the latest step towards an alternative to redevelopment in Los Angeles, city officials are considering the creation of an "infrastructure district" to fund a $1 billion revitalization plan for the Los Angeles River. The district has been made possible by a new tax-sharing law designed to replace tax-increment financing that had been used by the hundreds of redevelopment agencies shut down by Sacramento in 2012.  The Enhanced Infrastructure Financing District will funnel a portion of future property taxes in the district into the revitalization project. Funds will go towards creating wetlands and wildlife habitats, landscaping near the interstate and constructing a new tributary. However, the districts will likely only be able to collect about 60 percent of what the now-defunct redevelopment agencies collected, partially because, unlike with redevelopment, funds cannot be diverted from schools and other special districts without the districts' approval. Acknowledging the limitations of this type of financing, attorney Jon E. Goetz told the Los Angeles Times, "Redevelopment was a power tool, and this is more like a hand tool." Court Validates Sale of Ontario Airport to L.A.; Dispute Rages On In the ongoing battle between the City of Ontario and Los Angeles World Airports, a San Bernardino county judge tentatively ruled that the regional airport should not have been sold to Los Angeles in the 1980s. However, the statute of limitations governing the sale ended in 1989, thus validating Los Angeles' ownership. The decision is a setback for Ontario, which is trying to regain control of the airport. The city has offered LAWA $250 million while LAWA is asking for nearly double that amount, contending that it has outstanding liabilities from a 1998 renovation of the airport. Litigation will continue as Ontario claims that LAWA breached its contract by allowing traffic to drop precipitously, from 7.2 million annual passengers in 2007 to 3.9 million in 2013. San Franciscans Win Fight Against Shadows Residents in San Francisco concerned about access to daylight scored a victory this month. For residents near Victoria Manalo Draves Park in San Francisco, sunshine is a precious resource. So when a developer proposed a six-story residential project that would cast a shadow on the park, residents pleaded with the Recreation and Park Commission to reject the project. Officials voted 5-0 to reject the project, recommending that the Planning Commission do the same. It is the one multi-use park in the neighborhood, which has much less acreage of green space than other San Francisco districts. Residents who spoke out against the development also cited gentrification as a reason for their opposition to the development. "Some may laugh about the importance of sunlight and the relevance of a shadow on land processes," San Francisco Supervisor Jane Kim told the S.F. Examiner. "But let's face it, San Francisco is a cold city and affected by sunlight." Results Unclear in L.A.'s Longstanding Cash for Transit Program  A 23-year-old law designed to get Los Angeles workers to stop driving alone to work may not be as effective as lawmakers hoped. The law, passed in 1993, requires companies with at least 50 employees and with leased parking spaces to offer cash to workers agree to give up their parking spaces in favor of commuting methods such as walking, biking, or taking mass transit. Twenty-one years later, the California Air Resources Board, which is in charge of overseeing the program's implementation, has not kept track of many employers and workers are participating in the program.  Critics say that the eligibility rules have only applied to about 3 percent of free parking spaces provided by employers in California. In areas where the program has been implemented, though, researchers have shown that the program has been effective, dropping the percentage of employees who drove to work from 76 percent to 63 percent. According to the Los Angeles Times, roughly 90 percent of commuters in Los Angeles and Orange counties receive free parking at work. San Diego Faces $3.9 Billion Infrastructure Backlog The City of San Diego has released a comprehensive report estimating that the city needs $3.9 billion in infrastructure upgrades including roads, sewers, and storm drains. The report contends that, over the past several decades, the city's infrastructure has crumbled as politicians have dragged their feet in creating any long term plans for repairs. Officials now face the task of finding sources of funding for the repairs, with only $2.2 billion available, leaving a $1.7 billion gap. A significant portion of the needed funding comes because of new state rules requiring upgrades to storm drains to decrease pollutant discharge. Lemon Grove Planning Commission May Dissolve The mayor of the San Diego County city of Lemon Grove is seeking to dissolve the city's Planning Commission, saying that the City Council can do the job of the planning commissioners and save the city time and money. However, the city council has been hesitant to carry out this request. This week it called on city staff to determine the costs and effectiveness of the planning commission. Mayor Mary Sessom claims that having the City Council perform the duties of the planning commission could save the city thousands of dollars in wages. However, Former Planning Commissioner Racquel Vazquez said that it was important to have an additional "layer between special interests and those who are in elected office" in the city through the planning commission.

The 2035 Fresno  General Plan adopted by the City Council on December 18 puts the city's foot down on sprawl. Supporters see the approval as a major victory for Smart Growth principles, though it had critics on left and right. A strong center/left coalition joined Mayor Ashley Swearengin in backing the plan, However, environmental justice and equity activists asked how strongly the plan would limit suburban expansion and who would benefit from infill development. They sought policies for affordable housing and against displacement, and attention to industrial polluters such as the notorious Darling International rendering plant southwest of downtown.  Meanwhile, local developers and small-government advocates questioned whether the plan would curtail property rights or lifestyle choices, and asked if people accustomed to suburban densities and private auto use would remain in Fresno if it meant accepting denser housing, especially in the stigmatized downtown area. Tea Party-oriented opponents recoiled at federal funding for projects such as bus rapid transit (BRT). Something new As passed, the General Plan represents something new in Fresno, and uncommon in the Central Valley. It does not seek to expand the city's existing 157-square-mile sphere of influence. It projects about half of future growth within city limits; delays expansion in a southeast growth area; requires mitigations for lost farmland; and requires developers to study and share costs of peripheral projects. Keith Bergthold, who led the General Plan process as the city's Assistant Director of Planning until his move to the Fresno Metro Ministry in February 2014, said the plan is clearer about goals that also appeared in past plans, and that clarity will be "further supported" by the imminent update of the Development Code, last fully rewritten in the 1960s.  He said, "I'm not sure there was always a clear way to say no in the previous General Plan" to development that didn't fit the city's goals. Whereas now: "There are some ways to say no if appropriate and be more clear about it."  "We're trying to marry our land use policies with our transportation policies," said Arnoldo Rodriguez, Planning Manager with the city's Long Range Planning Division, who has led the General Plan process since Bergthold's departure. The plan raises densities in Fresno's demolition-ravaged downtown and on two corridors where BRT lines are projected to operate by 2016. The north-south Blackstone Avenue corridor and east-west Ventura/Kings Canyon are to form an "L" with its hinge downtown, near the hoped-for high-speed rail station. (At Swearingen's urging, the Fresno City Council finally accepted a state grant to do high-speed rail planning in October after rejecting the grant twice.) Rodriguez said the city was working on lowering parking requirements to encourage density -- for example, allowing denser re-uses of older buildings without requiring added parking. Rodriguez said the General Plan redesignates some land uses to separate future residential and industrial expansions while streamlining permitting for commercial, light industrial and business park uses, in hopes of attracting employers "that do more than warehousing". For heavy industrial uses the new code will provide "additional teeth" to avoid exacerbating existing conditions. Further goals include five acres of parkland per thousand residents and improved access to healthy food.  Bergthold said he looks forward to seeing some permits granted quicker, notably for mixed-use projects. He said: "The zoning code was almost incapable of implementing the infill policies of the General Plan adopted in 2002." Or rather, it worked well for suburban subdivisions at five units to the acre. "It was just fine for the kind of development that became predominant and became unbalanced." The existing code authorized mixed-used development in some commercial zones but didn't describe it specifically so the category was rarely used. Drama in December In the General Plan public process, begun in 2009 the City Council's most visible turning point toward "smart growth" was its 2012 approval of the "modified Alternative A" framework, to maintain existing sphere of influence boundaries and emphasize infill.  But the runup to the December 2014 final approval was dramatic . Some players, including the Fresno Bee editorial board , viewed the pace that the city set for the final approval round as unnecessarily brisk. Rodriguez responded that the final draft released November 21, 2014 "was simply a refinement of the draft plan that was originally released on July 2, 2014, and we made every effort to accurately reflect changes... we felt that the General Plan, in draft and final form reflected the values of the community while also addressing items discussed during the plethora of meetings and public hearings."  In making the case for an infill-focused plan, Rodriguez said arguments for fiscal responsibility "really resonated with a lot of folks". Apart from the service and infrastructure costs of expansion, an existing agreement entitles the county to share tax revenues from any further areas the city annexes. Bergthold wrote that the new plan shifts cost advantages toward infill: it "calls for fair and proportional payments to support public services and infrastructure, and fiscal impact analyses from development at the city's peripheries requiring annexation or asking for a General Plan amendment." (A lingering question, however, is if enough costs are factored in for police, fire and maintenance services.) In a published op-ed December 14, Fresno City Council president Steve Brandau (elected since 2012) criticized "social engineers," wrote that density increases would create "regional sprawl" by driving population to neighboring towns, and complained, "some pansy in Sacramento thinks we need to live closer together and ride the bus". A Fresno Bee news photo of the December 18 approval meeting showed Brandau glowering behind a tray of flowers. A Fresno Pansy Association appeared on Facebook. Christine Barker, who is Project Manager, Resilient Communities with the Fresno Metro Ministry, commented (speaking as an individual), "People are angry because he seems to think that only outsiders from Sacramento (i.e. state government and federal agencies) want to have a nice downtown, investment in existing communities and walkable neighborhoods." She wrote that some responded by claiming the term "pansy" -- "Then, fine, call me a pansy. But I'm a local pansy." The Granville Homes development company was among property owners seeking land use designation changes in the General Plan. Rodriguez provided tabulations showing that of 61 Granville requests, the City Council granted 32, rejected four, and deferred the rest for staff consideration, including a cluster of requests within Granville's Copper River Ranch development at the far north end of the city. Rodriguez said 11 outstanding designation change requests from various landowners remained to resolve after the approval, counting the Copper River matters as a single request. (The Granville requests' proponent was legendary Fresno developers' advocate Jeff Roberts, now a vice president with Granville. He declined to comment for this article.) The city's December 5 "land use change requests" document, reflects several requests to lower residential densities on peripheral land. Rodriguez said city staff opposed many, and often the City Council backed the staff. Public health, urban planning and activism Adoption of such a plan in an auto-oriented city reflects a shift in local thinking, though what kind of shift is debated. As discussed in the recent dissertation of Miriam Zuk, now Project Director at the UC-Berkeley Center for Community Innovation, the past decade saw a partial reunion of the public health and urban planning fields along New Urbanist and Smart Growth lines -- and, in Fresno, a revival of neighborhood community activism. Fresno-area organizing for public health has been better funded in recent years, notably by the California Endowment, which began funding a Building Healthy Communities (BHC) Initiative in Fresno in 2009.  The dissertation sees some remaining distance among goals pursued, whether by BHC grantees or other organizations: air quality; Smart Growth infill and healthy land use principles such as reducing auto use; campaigns for affordable housing, other economic equity, and environmental justice efforts to redress geography-based wrongs such as pollution in disadvantaged neighborhoods. A key question has been how much the General Plan's framers feel it can or should do to redress Fresno's long history of de jure and de facto racial segregation, which the dissertation recounts. People of color were historically restricted to the south and southwest sides of downtown by "whites-only" deed restrictions and redlining. Racial and economic disparities persist between the north and south of the city. Rodriguez said the south and west of the city are downwind and downslope, hence have historically received industrial uses. CalEnviroScreen 2.0 identifies California's most environmentally and socioeconomically burdened census tract as covering the downward-opening triangle between Highways 99 and 41 south of downtown. The dissertation finds that health goals were promoted largely where they were complementary to economic development goals.  Ashley Werner, an attorney with Leadership Counsel for Justice and Accountability, was working on General Plan advocacy with a coalition of social justice groups associated with the BHC Initiative. She said the coalition sought more economic equity guarantees, including affordable housing, and more enforceability for "visionary language," including assurances that the city would genuinely hold the line on expansion. A further cascade of processes The General Plan's approval clears the way for a further cascade of planning processes. To start with, a public draft of the Development Code rewrite is expected around April. Bergthold looked forward to mixed-use zoning specifics in the new code and to provisions "to connect authorized development density/intensity to specific designated areas and realistic infrastructure capacities." He said more density would depend on a water system upgrade bringing in treated surface water and looping transmission grid mains to strengthen the existing well-based system. The city also can now resume work on the Downtown Neighborhoods Community Plan. That process started out ahead of the General Plan but was suspended around 2011 to let the General Plan complete environmental review first. Drafts call for a form-based code, greater densities, flexibility for business growth, and coordination with plans for the high-speed rail station. A Fulton Corridor Specific Plan process will likewise resume. Additional specific and community plans will follow, notably for Southwest Fresno. A plan by consultant Peter Calthorpe, not yet adopted, is on hold for the Southeast Growth Area, where the General Plan defers development.  Housing element on deck Later in 2015, revision of Fresno's housing element will help decide who gets to live in the new infill housing. Rodriguez said the General Plan uses infill to meet Fresno's assigned regional housing growth goal, about 20,000 housing units -- where the old approach would have expanded the sphere of influence: "Oh, yeah, we just add five square miles and we're done." It's debated whether gentrification and displacement are dangers in Fresno. Werner wrote that a few low-income people live downtown, and "we are concerned about potential displacement downtown as well as in surrounding neighborhoods targeted for revitalization and around the BRT corridors." Homelessness is substantial enough to imply not everyone can afford rent; Mayor Swearengin has presided over demolition and dispersal of large encampments south of downtown.   Bergthold and Rodriguez viewed downtown as too starved for investment to have gentrification or displacement problems. Bergthold supported an affordable housing policy "that distributes affordable units throughout the entire metro area." He wanted to see "a little bit of a trend" of increasing rents and property values "to attract private market development into areas that have been disinvested and neglected." Werner said density is not in itself enough to guarantee affordable housing though it often is necessary to allow it. She wrote that people in disadvantaged neighborhoods "have asked for grocery stores, retail outlets and more housing, including mixed-income and mixed use housing," so infill could help "long-abandoned and distressed neighborhoods." But she said displacement concerns were real in the absence of affordable housing commitments. She also argued there were not enough high-density designations in growth areas.  Suggestions for inclusionary zoning did not gain traction during the General Plan process. Barker said a former Council member called the idea "a bomb". Bergthold wrote: "I have personally stayed away from thinking about inclusionary zoning because of the urban decay we want to mitigate through market mechanisms and the hope that the new GP land use map with significant multiple-family shown as part of mixed income, mixed housing type, and mixed density neighborhoods designated throughout the growth areas and in infill target areas would provide a better platform for achieving the ultimate goals of inclusionary zoning without the fight." Making it stick The next several planning processes will establish whether the General Plan is more than "visionary language." "If there's anybody who thinks we're through, then we are really through," said Bergthold. He said the city now needs "constant encouragement" from an involved public to monitor the plan and ensure it takes effect. And Rodriguez said, "The hard part begins now with the implementation."

The Strategic Growth Council on Tuesday unanimously approved the Affordable Housing and Sustainable Communities program – the program that will distribute tens of millions of dollars in cap-and-trade funds – with only one minor amendment. The program now kicks into high gear, with six workshops in a row next week and prospective applicants required to submit "concept proposals" by February 19th. The only amendment passed yesterday was a strengthening of the program guidelines dealing with agricultural and natural resources land. As presented to the SGC, the program guidelines called for a "no net loss" ag and natural resources policy. The SGC adopted a flat prohibition on using AHSC money to build on ag or natural resources land. The workshops will be held as follows: Feb. 4: San Diego Feb. 5: San Bernardino Feb. 6: Los Angeles Feb. 9: Bakersfield Feb. 10: Stockton Feb. 11: Oakland To register, go here . Most stakeholders who spoke yesterday acknowledged that it was time to move forward with the program even though many of them still had some concerns about it. The one amendment approved by the SGC yesterday strengthened the language about protecting agricultural and natural resource lands. The staff had proposed a "no net loss" policy but the SGC changed that to a flat prohibition on using cap-and-trade funds to build on agricultural or natural resource lands. SGC's meeting material can be found here . Martha Bridegam's comprehensive article covering the program can be found here . Martha's update based on last-minute tweaks can be found here .

Among all of California's non-native tree species, one in particular may experience a growth spurt in the coming years. It's not the fan palm or the eucalyptus but rather the cell-phone pine and its incongruous cousin, the cell-phone palm. A new rule, established in 2012 by the Federal Communications Commission and recently updated, might mean taller palms, bigger pines, and more prominent towers for cities that are caught flat-footed – even if they don't the like the way the cell towers are disguised. The FCC's new guidelines, adopted in December and published January 8 in the Federal Register , clarify what was a significant grey area in Section 6409 of the Middle Class Tax Relief and Job Creation Act of 2012, which effectively updated many of the rules in the 1996 Telecommunications Act.  The new guidelines establish a strict timeline for evaluating projects that fall under Section 6409 protection. Section 6409 gives localities the right to challenge the modification of cell phone transmission towers if the locality finds that the modifications—such as the addition of a new antenna—would "substantially change the physical dimensions of such tower or base station."  If a requested modification is not "substantial," the locality "may not deny, and shall approve" the request, according to Section 6409. The law thus dictates that approval is the default action, and the locality has the burden of proving that a modification is ineligible.  "We're only allowed to deny something if it's a substantial change to the existing structure," said Christy Marie Lopez, an attorney with Aleshire & Wynder and immediate past president of the States of California and Nevada Chapter of Telecom Officers and Associates. After two years of debate, in and out of court, over the meaning of "substantially," the new guidelines define it as a modification that is 10% larger than the facility's existing envelope or 20 feet taller than the existing facility's height. While the federal government may dismiss the impact of smaller modifications, many cities with strict codes for aesthetics and visual blight might disagree.  "I think that the new FCC order strips away more local authority over, most importantly, aesthetics," said Lopez. "That (guideline) doesn't give a city a lot of wiggle room to require carriers to bring their outdated, un-stealth towers into conformance with the city's rules on aesthetics….And now the community is affected by what could be called visual blight."  Lopez explained that a city might lose the power to, for instance, compel a carrier to camouflage a tower modification as a pine tree or palm tree, as many towers are.  Modifications that do not meet these significance thresholds may still be challenged by localities. But, the new guidelines place a strict timeline on these challenges. It is this new "shot clock" that has many planners and city attorneys worried.  T he new guidelines give localities 30 days to determine whether a project proposal is "incomplete" and, therefore, subject to a challenge. Previous iterations of Section 6409 gave localities 60 days, with more opportunities to stop the clock. The new 30-day period essentially requires that cities line up all of their analysis at once, not only regarding zoning, but also regarding safety and engineering. City officials, such as planners and building and safety inspectors, may need to review applications simultaneously rather than in sequence.  "The procedures…require a level of coordination that is unusual for these types of projects," said attorney Robert "Tripp" May, vice president of Telecom Law Firm, P.C. B ecause Section 6409 defaults to approval, a city's failure to adhere to the 30-day timeline means that an application will be automatically approved. In some cases, applications that would have heavy impacts on cities are the ones most likely to overwhelm their ability to process them.  "One thing that the shot clock doesn't equip cities well for is when a carrier comes in with a batch of applications," said Javan Rad, assistant city attorney for the City of Pasadena. The rule may also prey on cities that do not have sufficient staff or are bogged down with other planning matters.  "What it just depends on is the size of the city, the sophistication of the city staff itself, the need for wireless services in that city, the topography of the city," said Rad. Rad suggested that, while he does not expect many applications in a built-out city like Pasadena, certain desert cities are likely to see substantial numbers of applications.  "That's one of the reasons why it's caused some anxiety among engineers and planners who are going to be the ones in charge of being able to process these and the amount of time that they need," said Lopez. "If everybody is playing fair, the applicants have done a good job of explaining how their application fits into 6409 and they will allow the city to make a decision," said Rad.   According to May, the new rules are largely a matter of expediency, which neither respects nor disrespects localities' aesthetic concerns. "They're a federal agency that is tasked with rolling out wireless broadband at the highest rate possible," said May.  That is precisely what has not happened in the past, according to the guidelines' proponents. Others say that that is exactly what the guidelines are supposed to do – and that cities should embrace them.  "We've often been stymied at the local level with local planning authorities," said Michael Shonafelt, partner Newmeyer & Dillon LLP, which represents carriers and telecom industry groups. "That allows carriers to deploy those technologies in a way that the Telecom Act originally envisioned."       The rule may also be designed to thwart what some in the telecommunications industry consider to be frivolous objections to cell phone towers. Shonafelt dismissed many aesthetic concerns as a "tempest in a teapot." He said, in fact, that many objections raised on aesthetic grounds are often proxies for stakeholders' concerns about health. Some believe that microwaves from cell towers can have ill effects on health, but federal law forbids governments from taking these claims into account.  A single antenna may not ruin a neighborhood, even if it does slip through bureaucratic cracks. But many critics of the new guidelines and Section 6409 are concerned about larger issues.  Many are decrying the guidelines as the latest chapter in a long-running debate over the role the federal government may play in land-use matters that are typically considered the sole domain of localities. Some consider it an attempt by the wireless industry to pre-empt local zoning codes that the industry considers inconvenient or hostile to its business.  "The FCC stepping into what was traditionally local control is certainly a concern," said Rad. May went so far as to say that some attorneys think that the FCC's approach to local land use may be "unconstitutional, because it basically mandates that local officials...implement federal program."  Shonafelt said that local officials need to look at the bigger picture. He contends that the FCC has identified a national interest that compels localities to accept the constraints of the Telecom Act and Section 6409 because wireless communications transcend local boundaries.  "We're falling behind as a nation," said Shonafelt, in reference to the nation's telecom infrastructure and, in particular, its deployment of 4G wireless broadband. "Because there's a national interest that overrides the local interest sometimes, some of those powers will be curtailed a little bit." H e also encouraged cities to put the new guidelines in perspective.   "These facilities are pretty small-scale," said Shonafelt. "It's not like the entitlement of a multiunit apartment complex where you need lots of time to study the environmental impacts and other things." Contacts:  Christy Marie Lopez, Aleshire & Wynder LLP, www.awattorneys.com, 310.527.6660 Robert "Tripp" May, Telecom Law Firm, LLP, telecomlawfirm.com, 310.405.7333 Javan Rad, City of Pasadena City Attorney's Office, cityofpasadena.net/CityAttorney, 626.744.4141 Michael Shonafelt, partner, Newmeyer & Dillon LLP, www.newmeyeranddillion.com, 949.854.7000

The Coastal Commission approved two possible future industrial land use designations for San Diego after the Commission and city staff reassured industrial waterfront business representatives that the designations were unlikely to affect the shipyard areas around Barrio Logan. The business anxieties mostly concerned a new overlay zoning designation, IP-3-1, which would allow "co-location of residential and industrial uses," where the industrial uses would consist of light manufacturing or research and development, housing would be allowed on up to 49% of the land, and the same area would be further regulated by a Business Park Residential Permitted Community Plan Implementation Overlay Zone. The IBT-1-1 zone would be specific to development on the international border with Mexico. As a preview analysis by NBC San Diego suggested , the proposal appeared against the background of tensions over interaction between residential and industrial uses in the Barrio Logan neighborhood near the shipyards. Shipyard businesses that last summer challenged and defeated the Barrio Logan Community Plan in a referendum because of its residential protections similarly opposed the IP-3-1 zone as possibly limiting heavy industry. Objections were led by the Working Waterfront Group, which described itself in a letter on file as "a coalition of water-dependent industrial business located proximate to San Diego Bay including a large constituency in the Barrio Logan Community Plan Area." The organization's letterhead lists entities from the ILWU longshore union to General Dynamics NASSCO. The Navy and Port of San Diego objected separately. Sharon Cloward of the San Diego Port Tenants' Association was among speakers complaining of short notice but expressing gratitude for the city's reassurances. Senior Planner Dan Normandin with the City of San Diego said both new zones came up in discussion of the Otay Mesa Community Plan update. He said IP-3-1 was a "research and development zone," not "appropriate" for application to a heavy industry area such as Barrio Logan. He said the proposal before the Commission in January was only to create new zoning categories, whereas a choice to apply them to an area within the Coastal Zone would require extensive further public notice and review. Also in San Diego, the Commission easily approved amendments to the Centre City and Marina Planned District Ordinances on relatively minor changes to standards including those to permit outdoor entertainment uses such as sidewalk cafés. cp&dr , was recently director of planning for the city of san diego.> cp&dr , was recently director of planning for the city of san diego.> Two Laguna Beach Dramas Decided in a Day Laguna Beach activists have been fighting a couple of projects all year -- and on January 8, the Coastal Commission approved both. The Commission unanimously approved a 30-unit "work/live" project for artists in Laguna Canyon. Commissioner Jana Zimmer said she felt "a strong obligation to support" the housing because it would help provide affordable housing for artists in the area. John Erskine and Bonnie Neely of the Nossaman LLP firm worked on the matter for the project proponents. Erskine introduced the project team at the hearing, including sculptor Louis Longi. ( Neely formerly served on the Coastal Commission during her tenure as a Humboldt County Supervisor.) The proponents had accepted some conditions including native plant restoration work and removal of initially proposed cantilevered extensions to maintain a 25-foot minimum setback from the creek. A neighbor favoring the project said it had been through an "unbelievably protracted process" of seven years. Julie Hamilton, a former local planning staff member, represented three of four appellants including leading appellant Devora Hertz. On Hamilton's request for a show of hands, a large proportion of the crowd in the Santa Monica meeting hall raised hands to oppose the project. (Many were present for a later hearing on the Laguna "Ranch" project.) A letter in the hearing file from Hertz objected that the project as initially proposed contained eight units but "Somewhere in the twilight this project grew to be a 30-unit apartment complex." Objectors said the project was too close to the creek for both habitat and flood danger reasons, and was out of scale for the rural area. Hamilton said the adjacent animal hospital was undermined in a prior flood and "they had to dash madly to save its life, holding the building up with a bulldozer." Further objections said the project was one in a larger series under consideration whose cumulative impact should be considered, and that traffic impacts had not been fully considered. Appellant Jackie Gallagher said that, from experience in "the art industry" locally, "the artists came to paint the canyon, they didn't come to live in the canyon." Compared with small beginnings in the 1920s, she said, "there are thousands of artists in Laguna Beach and they're all living well." Deputy Director Sherilyn Sarb said the project's flood protections were adequate for a hundred-year storm and was in a developed area of the canyon. She said the restoration plan would require Fish and Wildlife as well as Commission review. On the same day, the perennially disputed Ranch at Laguna Beach project got its permit to finish renovations of the existing mid-century family vacation spot and upgrade the property for high-end resort use, splitting existing suites into smaller rooms and adding a penthouse for a total increase from 64 to 97 rooms. The Laguna Beach Independent reported the Commission held a five-hour hearing before approving the permit. Under the final deal, project proponent Mark Christy agreed to grant an easement for a trail plus $250,000 for its design and construction, and agreed to keep noise down and restore habitat. He also agreed to host overnight camping events for youth at the former scout camp on the property. However, the paper reported the Commission did not adopt earlier staff recommendations that would have required the Ranch to run a shuttle across the property until the trail could be built and possibly also to pay in-lieu fees to compensate for the increase in room rates. Appellant Mark Fudge and area activists had alleged that new uses of the property were disturbing neighbors, disrupting habitat, and reducing public access to formerly affordable amenities. In Other Commission News -- The Commission found no substantial issue on a major Dana Point Harbor "commercial core" reconstruction but the parties looked forward to considering the matter further in future. Two appellants had objected to the proposed relocation or removal of businesses renting jet skis, boats and kayaks -- a form of recreation available to people who don't own boats themselves -- and also to boat storage and parking provisions. Commission staff said the city had not as yet approved a dry boat storage building that would cause the displacement opposed by the appellants. The Orange County Register reported negotiations began for purchase by the Orange County Water District of desalinated water from the the Poseidon Water plant. The Register reported it would likely cost twice as much by volume as "water imported form Northern California" but the Huntington Beach Independent reported the prices quoted have varied. The Commission approved an expansion of the Cowgirl Creamery in Point Reyes Station, also described as "the Barn Project", over objections from the Environmental Action Committee of West Marin. The January 1 effective date of of SB 968 brought a new challenge to tech billionaire Vinod Khosla in the Martins Beach coastal access dispute. Despite heavy lobbying on Khosla's behalf, the bill by State Sen. Jerry Hill requires the State Lands Commission to negotiate with Khosla for public purchase of the access road that he has closed to the popular San Mateo County surfing beach. If purchase negotiations fail after a year the Commission is authorized to acquire beach access for the public by eminent domain. Aaron Kinney of the Mercury News and Santa Cruz Sentinel has details . Kinney notes the legislation is "one of four fronts" in Khosla's battle to block access to the beach. Two court cases are pending on the matter, and the judge in one of them has ordered Khosla to open the gate. So has the Coastal Commission. Writer and cartoonist Susie Cagle has a column on the dispute's context in the Pacific Standard . Meanwhile, literal access to the site has become inconsistently possible again. The San Mateo Daily Journal reported that Jim Deeney, the property's former owner and current manager, was sometimes allowing people to drive to the beach -- but not walk there -- for a $10 fee, and only when someone was available to collect it. The paper reported one local surfer who tried to walk to the beach was turned away, and another man who walked to the beach was met by a sheriff's deputy who threatened to cite him for trespassing -- though the sheriff's department "said it is not turning people away from the beach" and was looking into the deputy's action. A legislative report to the Commission mentioned a quietly enacted new climate change law alongside more prominent items. The new AB 2516 requires the Commission to report twice a year to the Natural Resources Agency on each Local Coastal Program's progress in planning for sea level rise. The Director's Report for January included an update on progress toward certifying LCPs for remaining segments of the Los Angeles County coast now that the difficult Santa Monica Mountains process is concluded. Yet to complete are LCPs for the six segments of the City of Los Angeles coastal area (the Port of Los Angeles has its own certified LCP) and for the cities of Santa Monica, Hermosa Beach and Torrance.

A NEW STUDY OF WATER SUPPLY in California provides a mixed picture. The state could meet much of the demand required by a growing population through water conservation, groundwater banking, recycling and water transfers, according to a report from the Public Policy Institute of California. However, the long-term plans of many water agencies rely heavily on the development of new supplies, especially groundwater in areas with no groundwater management policies. “Water for Growth: California’s New Frontier” by Public Policy Institute of California Research Fellow Ellen Hanak recognizes what many water experts have said for years — the era of constructing large dams and aqueducts is over. Instead, water suppliers will have to be more creative in managing limited water supplies. According to the PPIC report, California is expected to add 14 million new residents by 2030. If current water use trends prevail, the state would need an additional 3.6 million acre-feet of water to provide for population growth. And that projection might be low because about half of the state’s population growth is expected to be in the Sacramento region, the San Joaquin Valley and the Inland Empire — locations where single-family houses predominate and more than half of water is used for landscaping. Hanak was encouraged to find that a little more than half of planning agencies participate to some extent in utility planning and in regional water policy groups. She also reports that compliance with SBs 610 and 221 — 2001 legislation requiring proof that water will be available for large developments —is quite high. Hanak was less upbeat about mandatory urban water management plans. She found that one-sixth of agencies did not submit required plans during the 2000 update cycle, and the plans of many utilities rely heavily on “paper water” and additional groundwater pumping to meet future needs. Hanak makes four recommendations: • Strengthen long-term water planning, in part by giving land use planners more say. • Streamline project-level water adequacy reviews by improving long-term planning documents and finding ways to pay for new water supplies. Hanak also recommends charging developers impact fees to fund water development. • Realize the potential of water conservation, in part by charging higher rates to the biggest water users. • Consolidate progress in groundwater management because overdraft is a serious problem in some areas. Hanak further recommends that the state withhold new water supply permits from local agencies that do not manage water responsibly. The PPIC report is available at www.ppic.org HOUSES IN FRESNO will have water meters. In July, the city approved a 40-year contract renewal with the U.S. Bureau of Reclamation for the delivery of 60,000 acre-feet of water from the San Joaquin River. The deal requires installation of water meters at all single-family houses in the city by 2013. Only about 25,000 of the city’s 105,000 houses have meters, and the city has never billed homeowners anything but a flat rate. However, both state lawmakers and federal officials insist that the days of meter-less water use in Fresno had to end so that homeowners would be encouraged to conserve. Retrofitting existing customers with water meters is estimated to cost at least $50 million. Commercial and multi-family developments already have meters. RECONSTRUCTION OF THE BAY BRIDGE is again moving forward now that Gov. Arnold Schwarzenegger has signed a bill that addresses funding of the $6.3 billion project. Under the deal spearheaded by state Senate President Pro Tem Don Perata (D-Oakland), the state will provide an additional $630 million for the project. Tolls on all bridges in the Bay Area except the Golden Gate Bridge will increase by a buck to $4 in 2007 to raise another $800 million for the project. Caltrans will keep the single-tower suspension design that has caused much consternation. The 1989 Loma Prieta earthquake caused a section of the Bay Bridge’s eastern span to fail. Caltrans has retrofitted the western span and plans to replace the eastern span. However, the project stalled last year when the state received only one bid, at double the expected $740 million cost, for the suspension tower (see , October 2004). Nearly a year of negotiations, which added an estimated $400,000 per day to the project cost, resulted in the deal signed by Schwarzenegger. The re-bidding process has already begun. The project’s expected 2012 completion date would give a fourth governor a Bay Bridge photo op. Pete Wilson signed the first funding bill on the bridge in 1997. Gray Davis attended the project groundbreaking. And in July Schwarzenegger signed the latest funding bill with the bridge looming over his shoulder. CITY OF SANTA PAULA VOTERS will not decide on a growth-control initiative during the November 8 special election. Ventura County Superior Court Judge Steven Hintz ruled in July that Santa Paula City Clerk Josie Herrera was correct to disqualify the initiative because signed petitions did not include the ordinances that the initiative wanted to amend. The proposed initiative would have put to a public vote any project of more than 80 acres proposed at a higher density than allowed under the general plan. The initiative came in response to Centex Homes’ proposal for about 2,200 houses, townhouses and apartments on 2,200 acres that Santa Paula would annex. The city’s general plan now calls for about 450 houses on the site. The City Council is scheduled to consider the housing project later this year. Opponents vowed to keep fighting. A 5.8-MILE TROLLEY EXTENSION to San Diego State University opened in July — 28 years after it was first planned. The $500 million project extends San Diego’s thriving, 54-mile trolley system through Mission Valley, providing an alternative to congested Interstate 8. The line is expected to get about 11,000 riders a day, one-third of them SDSU students. THE AIR FORCE IS PROPOSING to reduce the cleanup of groundwater contamination at the closed McClellan Air Force Base, according to the . Sacramento County fears that the reduced cleanup could substantially set back reuse of the 3,000-acre base as a business and industrial park. The military has been pumping and treating tainted groundwater at McClellan for two decades. The new proposal calls for shutting down extraction wells. Instead, the military would only take steps necessary to contain pollution within the base boundaries. The change would save about $600 million, but it still needs approval from the U.S. Environmental Protection Agency. TWO SAN DIEGO CITY COUNCILMEN were convicted in July in a federal corruption trial. According to prosecutors, Councilmen Michael Zucchet and Ralph Inzunza accepted $23,000 in campaign contributions from the owner of Cheetahs adult nightclub. They were convicted of conspiracy, wire fraud and extortion. Also convicted was Lance Malone, a former Clark County, Nevada, commissioner, who went between the Cheetah’s owner and the San Diego councilmen. Zucchet, Inzunza and Councilman Charles Lewis, who died while under indictment, tried to ease the city’s “no touch” rule for nude dance clubs. The scheme also involved closing down a Cheetahs competitor and amending the city’s zoning code to make it more difficult to open new adult businesses. Zucchet, Inzunza and Malone have maintained their innocence and vowed to appeal. Sentencing is scheduled for November. THE MARIN COUNTY GRAND JURY has criticized the county’s planning process as “unclear, convoluted, time-consuming and costly.” The Marin Community Development Agency got the grant jury’s attention last year when there was controversy over a 6,500-square-foot house in Greenbrae that was originally permitted for only 3,950 square feet. The grand jury found flaws in the agency’s code enforcement, building inspection and planning practices. The county, however, has already undertaken steps to improve the system, according to officials. The county has adopted new design guidelines for single-family homes, added planners and revised various procedures.

What has been possibly the longest-running general plan controversy on record appears to have concluded on August 31, when a Sacramento County Superior Court judge accepted a revised environmental impact report for a new El Dorado County general plan. The judge’ decision gives the county a legal general plan for the first time since 1999. After a seven-year process with multiple political swings, the El Dorado County Board of Supervisors adopted a new general plan in 1996. A collection of homeowners and environmental groups sued, arguing that the plan’s EIR was inadequate. A Sacramento County judge agreed in an early 1999 decision that eliminated the county’s ability to approve discretionary projects (see , March 1999, March 1996). Last year, the Board of Supervisors approved a slightly revised general plan and a new EIR. The plan survived a referendum in March of this year (see , April 2005). The county then returned to court, where it won Judge Gail Ohanesian’s blessing. The county intends to begin processing applications again this month. An appeal of the decision is likely. The case is , Sacramento County Superior Court Case No. 96CS01290. In a controversy nearly as old as El Dorado County’s, a federal judge has stalled a proposed giant garbage dump in Riverside County near Joshua Tree National Park. In late September, U.S. District Court Judge Robert Timlin rejected the Bureau of Land Management’s study of a proposed land swap with Kaiser Ventures, which first proposed the Eagle Mountain landfill in the late 1980s. Kaiser now has a deal with Los Angeles County, which intends to purchase the landfill site from Kaiser for $41 million. Kaiser and the BLM propose swapping approximately 2,500 acres owned by the federal government for a like amount of property Kaiser owns elsewhere in the desert. Judge Timlin found that the BLM did not fully consider alternatives to the land trade, failed to adequately analyze the project’s impacts on national park visitors and bighorn sheep, and did not consider the increased number of predators that that landfill may lure. The proposed garbage dump has withstood extensive state court litigation and political controversy (see , June 1999, April 1996, November 1994; , October 1997; , November 1992). However, environmentalists have continued to fight the project vigorously. San Diego County has sued the City of El Cajon over two proposed development projects — a Home Depot and an 11-lot residential subdivision. Pointing primarily to traffic, the county argues that the environmental reviews for the projects are inadequate. But city officials question whether the county is trying to halt the city from annexing the properties because development within the city limits would deprive the county of a new traffic impact fee. “We’ve never had the county jump on us, and I’ve been with the city for 32 years,” El Cajon Community Development Director Jim Griffin said. “Now we have to pay money to defend lawsuits, and applicants are hung out to dry.” The Home Depot project on East Main Street has been particularly controversial. The city certified an EIR in 1999, but later that year rejected the development. This time around, the city used the six-year-old EIR but added an addendum to address traffic, air quality, noise and other issues. Neighbors remained opposed and they got support from county Supervisor Dianne Jacob, who testified against the project. With both projects now in court, the San Diego County Local Agency Formation Commission has put the annexations on hold. The salamander wars continue unabated in Central and coastal California. In a victory for environmentalists, U.S. District Court Judge William Alsup ruled that the Santa Barbara County and Sonoma County populations of California tiger salamander qualify as endangered. The U.S. Fish and Wildlife Service (USFWS), which granted the amphibians Endangered Species Act protection only after earlier litigation, had downgraded the two salamander populations from endangered to threatened. Alsup determined that the agency “did not supply any scientific evidence” for the downgraded status. The case is , No. 04-04324. The listing has been particularly controversial in Sonoma County because of the potential for slowing development and wine-growing activities (see , July 2004). Federal officials have proposed designating 74,000 acres near Santa Rosa as critical habitat for the salamander. In a victory for development interests and landowners, USFWS released a new map of critical habitat for the Central California and Santa Barbara County populations of the tiger salamander. The map covers 199,000 acres in 19 counties, but contains only about half as much territory has an earlier proposed critical habitat designation. In its final decision, USFWS eliminated from the critical habitat designation 12 census tracts in Alameda, Contra Costa, Fresno, Monterey, San Benito and Santa Clara counties because of the economic impact the designation would have had. A pair of 53-story hotel and condominium towers proposed for the Capitol Mall in Sacramento has received the Sacramento Planning Commission’s approval. At 615-feet, the towers would be the tallest structures in Sacramento by nearly 200 feet. Proposed by developer John Saca for Capitol Mall at Third Street, the buildings would have a hotel on the lower floors and at least 700 condominiums on the upper stories.