About 20 years after the Monterey Agreement sewed up disputes among contractors of the State Water Project (SWP), opponents of the deal have come as close to unstitching it as they've been in many years. In an October 2 ruling on the Kern Water Bank cases, Judge Timothy Frawley ordered the EIR on the "Monterey Plus Project" settlement to be revised and submitted for recertification, but with the revisions to focus only on the environmental impact of the "use and operation" of the Kern Water Bank. The "Monterey Plus Project" is the current implementation of the much-litigated 1994 Monterey Agreement. Named for the site of the negotiations, the agreement settled disputes between the Department of Water Resources (DWR) and SWP water contractors about water deliveries, mainly in Southern California. Disputed effects of the agreement included eliminating the "urban preference," which favored urban populations over agriculture in times of shortage, and transferring the Kern Water Bank to a local joint powers authority, the Kern Water Bank Authority (KWBA). Frawley refused to reopen the question of whether the Kern Water Bank was correctly transferred to the KWBA in 1995-6. Environmental and community groups in the dispute contend the transfer effectively privatized a public resource for the benefit of large landowners – especially Roll Global's Paramount Farms, known for its thousands of acres of almond and pistachio trees. Adam Keats, lead counsel with the Center for Biological Diversity (CBD), an important petitioner in the matter, wrote after the decision: "At this point petitioners are planning on appealing Judge Frawley's ruling, both because we disagree with his remedy that has left the approvals of the transfer in place and because we disagree with other parts of his ruling related to the rest of the Monterey Amendments. It is possible that the new EIR process could proceed alongside any appeal." Although everyone got something in the decision, Frawley ruled petitioners were the prevailing parties for purposes of attorneys' fees. Previously on March 5, Frawley issued a more sweeping decision in the matter, as reported at http://www.cp-dr.com/articles/node-3456. That decision – really, two rulings in parallel consolidated cases – upheld most aspects of the EIR on the Monterey Plus Project but found the EIR's analysis was deficient as to the Kern Water Bank component of the deal. Per the limits of the March ruling, this month's order did not reopen the broader question of whether the Monterey Agreement itself (and the resulting Monterey Amendments to the SWP's contracts) served the public interest. Located at the foot of the Central Valley south of Bakersfield, the Kern Water Bank is the largest of several area water banks: a system of pipes, wells and recharge ponds that allow massive quantities of water – potentially up to 1.5 million acre-feet – to be stored in the loose sandy ground of the Kern Fan Element and drawn out again at need. The water bank's Web site says it now has "about 0.8 million acre-feet in storage." The KWBA issued a statement on Judge Frawley's ruling saying "the Court appropriately rejected the extreme remedy of shut down of the Kern Water Bank as advocated by the Center for Biological Diversity (CBD) and other petitioners in the Central Delta case." It quoted Frawley's statements that "shutting down the Bank would result in more environmental harm than allowing it to remain operational" and noted he "ruled it would be 'contrary to the public interest' and 'reckless and irresponsible to suspend Kern Water Bank operations particularly under current severe drought conditions. As the Court's ruling also states, the 'point of having a water bank is primarily to provide water in times of shortage'." On the shutdown issue, Keats wrote: "Petitioners argued that the transfer needed to be reversed and the water bank returned to the state, and we intend to take that  argument up on appeal.  We also argued that the judge should – but was not absolutely required to – shut the water bank down pending future environmental review. As an alternative, recognizing the  economic factors that the judge may consider, we argued that while the law required the judge to return the water bank to the state, it allowed him to permit continued operation and use of the water bank pending future environmental review. He kind of did this, stating that the bank can continue to operate pending future environmental review while also not disturbing the transfer." Frawley wrote in his ruling that the court faced "the fulcrum of a pointed dilemma" created "because DWR approved and completed transfer of the Kern Water Bank lands to KWBA in 1995-96, but did not complete its environmental review of the transfer until approximately fifteen years later, in 2010." The initial transfer of the Kern Water Bank was made under the terms of the original Monterey Agreement; its terms were modified by a 2003 settlement of litigation brought by a prior, separate group of environmental plaintiffs, led by the Planning and Conservation League (PCL). A major question in the current phase of litigation has been what latitude remains to the current set of petitioners since, as Frawley's opinion puts it, they have "arrived late to the party." In the two cases that Frawley considered together, the two sets of petitioners had sought different levels of reopened review. The neighboring water districts that were petitioners in Rosedale-Rio Bravo Water Storage District v. DWR , Case No. 34-2010-80000703, had offered to accept an order changing much less of the status quo. Their proposed order would have limited EIR decertification to the Kern Water Bank portion of the Monterey Plus Project while providing for only a "supplemental, geographically-limited EIR focused on the potential impacts (particularly as to groundwater and water quality)... in the immediate vicinity of the Kern Water Bank lands." But CBD and other activist petitioners held out for more in the larger, more political case of Central Delta Water Agency v. DWR , Sacramento Superior Court Case No. 34-2010-80000561. In his decision, to the environmental groups' delight, Frawley went farther than the Rosedale group had asked. KWBA recounted Frawley's order that operation continue during DWR's work to revise the EIR, "subject to certain conditions including the interim operating plan jointly developed by and between KWBA and neighboring Rosedale-Rio Bravo and Buena Vista Water Storage Districts for protection of local groundwater. KWBA is committed as a responsible agency to diligently assisting DWR with timely completion of its supplemental review as required by CEQA and the Court and bringing closure to 19 years of litigation." EIR could need to consider far-flung effects The new EIR review is limited only by subject matter, not geography, so arguably the analysis could extend to any site served by the SWP if the Kern Water Bank is involved. Keats wrote: "Anything in the EIR that deals with the Kern Water Bank in any way needs to be revisited in the new EIR. At this point it is hard to say how much the analysis will change, but anything related to the KWB is on the table." Carolee Krieger of the California Water Impact Network (C-WIN) , which was also a petitioner, praised Frawley's decision not to limit the new EIR review geographically. Krieger cited her own home town of Montecito as an example of physically distant effects from current priorities at the Kern Water Bank. She said on joining the State Water Project, Santa Barbara County agreed to build 144 miles of pipeline and pumping facilities from the main State Water Project line in Kettleman City over the hills to Lake Cachuma. She said the county was paying down $1.76 billion in costs for the pipeline, far more than voters had been led to expect, and Montecito's share of that came close to $6 million out of an $11.4 million revenue stream, "whether we get any water or not." And she noted the State Water Project is delivering only 5% of the amounts in its contracts this year. "Now what galls me," she said, "is, if the Kern Water Bank were a public asset as DWR had planned and if the urban preference were in place as DWR had planned, Montecito would never have gotten to this place." Montecito's water shortage has been especially severe. Krieger said city water users have cut back by 45% and the city has had to purchase water on the open market. As she noted, Politico reported in August that celebrities in the area, including Oprah Winfrey, were hauling water by tanker truck to their estates. Allegations of private benefit As of 1995, the future Kern Water Bank, which DWR had begun to create but had not finished, was transferred in exchange for the receiving entities' retirement of 45,000 acre-feet in annual water rights. The Kern Water Bank writes on its Web site , "The KWBA had to construct significant infrastructure to turn the lands into a functioning water bank" including "approximately 7,000 acres of recharge ponds, 85 recovery wells, 36 miles of pipeline, and a six-mile-long canal." But AP's Garance Burke writes that the Department of Water Resources previously put $74 million of its own and $23 milllion of bond proceeds into earlier stages of the project. Critics have focused on benefits to Paramount Farming Co., a company in the Roll Global holding company of investors Stewart and Lynda Resnick. Paramount reportedly owns the Westside Mutual Water Co., which as of 2011 owned 48.06% of the base shares in the KWBA. Critics say Paramount and the neighboring Tejon Ranch Co. also have significant influence with other large shareholders in the KWBA. Krieger noted the judge's words that the water bank exists "to provide water in times of shortage," but said, "the way the Kern water bank is operated with the Resnicks controlling 58%, they do not sell to the public without getting a huge profit. They are a private company." She said it was the DWR's intention "to have a place to store surplus water" south of the Delta, with the urban preference in place, to serve the public. "It's people who need the water in times of severe drought. Crops can be fallowed." She said Frawley "just doesn't get it" when it comes to objections about private profit from the sale of Kern Water Bank water and about the loss of the urban preference in the Monterey Agreements. Potential effects on both sides of the Tehachapis Although the Kern Water Bank case is discussed most frequently as benefiting Paramount, it also affects water districts that work with the Tejon Ranch Company on both sides of the Tejon Pass, and even the Newhall Land and Farming Company, whose proposed Newhall Ranch development at the north edge of Los Angeles suburbia is currently before the State Supreme Court. The Newhall Land and Farming Company holds a right to store 55,000 acre feet of water with the Semitropic Water Storage District, which in turn owns 6.67% of the Kern Water Bank . The Semitropic Water Storage District has been named as a real party in interest in the Kern Water Bank suit. As for the Tejon Ranch Co., a detailed 2011 California Lawyer article on the litigation reported CBD's Adam Keats first turned his attention to the Kern Water Bank because it was listed as a possible water source for the company's upscale Tejon Mountain Village development in the Tejon Pass highlands, which has since won initial approvals. Bakersfield Californian columnist Lois Henry tangled with the Tejon Ranch Co. in March 2014 when she suggested Judge Frawley's initial ruling might affect the Tejon Mountain Village project; she reported that the company's Barry Zoeller wrote to her then, "It's not a concern" and that the project also had other water sources. Henry has also reported that the Tejon Ranch Co. has been making purchases of water rights in recent years. She reported based on a November 2013 SEC filing that Tejon Ranch has contracted for a right to purchase Kern River water from Nickel Family LLC. (Henry's local water coverage also includes a more recent comment on the impending Kern Water Bank decision as of this September that offers some insights into the Rosedale-Rio Bravo water district parties' perspectives.) It is uncertain how or whether the Kern Water Bank decision may affect the proposed planned town of Centennial, whose proponent is a joint venture by the Tejon Ranch Co. and others, known as Centennial Founders, LLC. Centennial would place some 23,000 units of housing on land at the south edge of Tejon Ranch, around Quail Lake on Highway 138 east of I-5, in unincorporated Los Angeles County. The west branch of the California Aqueduct runs through the proposed site. But in a recent public comment on the Draft EIR for the Antelope Valley Area Plan, which affects the Centennial site's zoning, the Tri-County Watchdogs activist group mentioned the Kern Water Bank decision in calling on Los Angeles County planners to scrutinize water sources for new Antelope Valley development. It's likewise unclear how the Kern Water Bank might affect the portion of Tejon Ranch real estate development that is physically closest to the water bank area: the existing industrial, travel and outlet-mall complex near the junction of the I-5 and 99 highways south of Bakersfield, and, next to it, a proposed new development with 12,000 residential units to be known as Grapevine . Henry's reporting has suggested the purchase of the "Nickel water" may have been with Grapevine in mind. The Tejon Ranch Company, Tejon-Castac Water District (TCWD), and, on some court papers, the Wheeler Ridge - Maricopa Water Storage District (WRMWSD), have been described as real parties in interest in the Kern Water Bank case. The Tejon Ranch Company has large water delivery contracts with TCWD, which as of 2011 owned 2% of the Kern Water Bank, and WRMWSD, which as of then owned 24.03% of the Kern Water Bank. The company's profile of Dennis Atkinson , Senior Vice President, Agriculture and Water Resources, states he is "president of the Tejon Castac Water Agency, vice president of the Wheeler Ridge Water Agency and is also a member of the Kern County Water Bank Authority board of directors." The Tejon Ranch Co. gives its own accounts of its real estate projects and water holdings in its initial and amended 10-K reports for 2013. An old public argument The Monterey Agreements, the Kern Water Bank, and land development between Bakersfield and Los Angeles are long-established matters of entrenched political conflict. The Kern Water Bank's 1995 transfer from the Department of Water Resources to the Kern County Water Agency, and thence within days to the Kern Water Bank Authority, can be viewed either as privatization or as devolution to local control. The question whether the water became privatized depends on the view taken of water districts that are public entities but governed by and for large private water users, i.e. major landowners. Background on the arguments that a public resource was transferred for private enrichment appears in the 2011 California Lawyer article and in a paper titled, "Water Heist" published in 2003 by Public Citizen at http://www.citizen.org/documents/water_heist_lo-res.pdf . The Public Policy Institute of California has taken a more favorable view. Key papers by senior water scholar Ellen Hanak and others include Hanak's 2003 "Who Should Be Allowed To Sell Water in California?..." at http://www.ppic.org/content/pubs/report/r_703ehr.pdf and its 2012 update at http://www.ppic.org/content/pubs/report/r_1112ehr.pdf . The 2012 PPIC report, in characterizing effects of the 1994 Monterey Agreement, wrote, "This agreement also led to the transfer from state to local ownership of a part of the Kern Fan, near Bakersfield, where the state had unsuccessfully attempted to launch a groundwater bank. This area, now known as the Kern Water Bank, has become one of the leading examples of groundwater banking." The Kern Water Bank's own account of its history is at http://www.kwb.org/index.cfm/fuseaction/Pages.Page/id/360 . It maintains a "Myth and Reality" page offering rebuttals to the Center for Biological Diversity's allegations as of a time when the lawsuit's filing was "recent".

California's state housing finance administrators published a long-delayed study October 13 on the cost of building affordable housing. It found no single factor to blame for California's high costs per unit. But it said economies of scale tend to help, and multiple layers of restrictions don't help, and that perhaps cost containment should be a more important factor in awarding housing tax credits. The study found per-unit new construction costs averaged about $288,000 across the period from 2001 through 2011, for all units financed by the California Tax Credit Allocation Committee (TCAC). Those units would have been financed primarily with state and federal low-income housing tax credits, but with other funding sources layered in as well, especially where deep affordability subsidies were used to house people living on public benefits or minimum-wage incomes. Overall, costs increased when projects involved community opposition, local design-review requirements, underground or podium parking, or funding from redevelopment agencies. Smaller units cost less; higher construction or energy-efficiency standards cost more. Economies of scale were possible when a big developer, a big project, or a general contractor was involved: "for each 10 percent increase in the number of units, the cost per unit declines by 1.7 percent." Among other findings, the study said high land costs tended to raise per-unit costs even when the price of the building site wasn't part of the calculation, because expensive building sites tended to be used for taller structures that were more expensive to build. In general the study concluded that developers' own choices can influence costs, and costs rise when requirements are added by the demands of a particular location or cooperating funding source. It suggested adding "a greater emphasis placed on cost containment or cost efficiency" in the competitive application process for tax credit allocations. The authors reported they attempted to gather market-rate project costs as a basis for comparison but received few sufficiently complete responses from developers so the results were unscientific. In general they found market-rate construction costs averaged higher. The cosponsors of the study were four state agencies: the Department of Housing and Community Development (HCD); the California Tax Credit Allocation Committee (TCAC), which distributes state and federal LIHTC credit allocations; the California Housing Finance Agency; and the California Debt Limit Allocation Committee. The full text of the report as posted this month is on the HCD Web site at http://bit.ly/1rtNZN6. Although the project was described as prepared "over the course of a year," it appeared to be the institutional descendant of a September 2011 hearing on affordable housing costs before the TCAC. Materials from that initial discussion are still posted under the heading, "Affordable Housing Cost Study" at http://www.treasurer.ca.gov/ctcac/tax.asp. The September 14, 2011 hearing transcript contains extended testimony by leading subsidized-housing developers, housing administrators and affordability activists about the reasons why it is expensive and difficult to build new affordable housing in California. See http://www.treasurer.ca.gov/ctcac/staff/2011/20110914/transcript.pdf. The RFP for a study that followed the hearing set a timetable entirely within 2012. It is still posted at http://www.hcd.ca.gov/2012_affordable_housing/Final_AH_cost_study_RFP.pdf. Both the 2012 RFP and the final study included a section interpreting the notion of cost containment more broadly. In the final study, this section sets out a case for affordable housing as a means to reduce greenhouse gases, improve local economies, educate children into employable, manageable adults, and reduce the costs of police, medical and social programs that are commonly applied to lives disrupted by the lack of adequate housing. A Los Angeles Times report that includes further summaries of the final study results is posted at http://lat.ms/1wDBSBz. Highlights as viewed by the National Housing & Rehabilitation Association are here .

The California Supreme Court agreed on October 1 to review a major CEQA case, Sierra Club v. County of Fresno , (2014) 226 Cal.App.4th 704, in which the Fifth District Court of Appeal blocked the "Friant Ranch," a large planned development focused on seniors' housing. (See prior coverage at http://www.cp-dr.com/articles/node-3504.) The ruling walks through several forms of CEQA analysis, so it's difficult to interpret the court's review announcement, which reads in substantive part: "This case presents issues concerning the standard and scope of judicial review under the California Environmental Quality Act." The online docket with the grant of review and links to the original opinion is at http://bit.ly/1vuOrji. The case was cited by conservationist petitioners in their important appeal of the challenge to the Regional Transportation Plan and Sustainable Communities Strategy (RTP/SCS) adopted by the San Diego Association of Governments (SANDAG). As explained last week at http://www.cp-dr.com/articles/node-3584, the SANDAG case has been awaiting decision since August 27. To the SANDAG petitioners, who have been alleging insufficient analysis in the RTP/SCS, the importance of the Fresno case is that it found an EIR for a project wasn't finished when it quantified projected air pollution effects numerically. The ruling said the EIR should also inform readers about the expected public health impacts of the emission tonnages that it mentions. Enforcement letter issued on Laguna Beach resort expansion The Coastal Commission issued an enforcement letter September 24 to stop part of the disputed renovation and upscaling work on The Ranch at Laguna Beach. The letter says project proponent Mark Christy engaged in improper unpermitted development in the form of landscaping, paving and construction of a 7000-square-foot dance floor in the property's eucalyptus grove. Construction, renovation and landscaping work on The Ranch at Laguna Beach was a subject of Coastal Commission arguments all summer. Part of the work has been allowed to continue as authorized remodeling of existing buildings, while other parts of the work have been ordered suspended pending Commission review. The enforcement letter distinguishes the outdoor work from the remodeling work on buildings that the Commission has been allowing to proceed. It asks Christy to "incorporate removal or modifications" to the unpermitted work into the description of the Ranch at Laguna Beach project that is already on appeal before the Commission. Jurisdiction argument fails to stop Graton casino The First District Court of Appeal on October 3 rejected a challenge to the Graton Tribe's planned casino at the edge of Rohnert Park. Opponents of the project, Stop the Casino 101 Coalition, alleged that, although the planned casino site was accepted into federal trust by the Department of the Interior, the tribe still lacked jurisdiction over the land. The project's opponents argued that, when the tribe reacquired the land from private owners and placed it into trust, the federal government did not specify that the tribe should also have jurisdiction over the land, and the state of California did not cede such jurisdiction to the tribe. The court rejected the jurisdiction argument, holding primarily that federally recognized tribes exercise jurisdiction over their reservations, and that even if state consent is required, "such consent is implicit in the compact signed by the Governor and ratified by the Legislature." The case is Stop the Casino 101 Coalition v. Brown , at http://www.courts.ca.gov/opinions/documents/A140203.PDF. In other news - The City of Los Angeles issued a "Great Streets for Los Angeles" transportation plan with emphasis on improving safety for bicyclists and pedestrians. The Los Angeles Daily News has details at http://bit.ly/1yLZjOL. For the report itself and a statement from the office of Mayor Eric Garcetti, see http://www.lamayor.org/mayor_garcetti_and_ladot_strategic_plan_transportation. The City of Fresno finally accepted a million-dollar grant to start plans for a station of the locally vilified High-Speed Rail project. See http://bit.ly/1CTYEte for recent Fresno Bee coverage and see http://www.cp-dr.com/articles/node-3568 for links to coverage of prior rejections of the grant. The Monterey County Weekly reports that Sean Parker of Napster has indirectly funded a big handful of grants to Central Coast conservation groups. Parker agreed to contribute $2.5 million to conservation after the Coastal Commission pursued him over environmental damage from preparations for his 2013 wedding. The Commission has now announced the grant recipients. See http://bit.ly/1y50GXx. The Sacramento Bee reported California's Democratic leadership may be waiting for the 2016 Presidential election turnout to try and pass extensions of temporary taxes first passed in 2012. For details see http://bit.ly/1nXXLwH.

This week the Strategic Growth Council (SGC) came back to some questions on distributing cap-and-trade proceeds that were asked but not conclusively answered this summer -- and hinted that maybe these are the tough ones. The occasion was a public airing at the Council's October 6 meeting for a recently circulated draft of proposed guidelines for the Affordable Housing and Sustainable Communities (AHSC) program. The Council took no formal vote on the program, and is not expected to do so until December 11. But in an extended public discussion at the meeting, new official thinking emerged on public comment themes that had seemed uncertain of getting traction during the August and September workshops on possible AHSC rules. Major topics included the fairness of a proposed funding set-aside for transit-oriented development; whether disadvantaged areas with public health hazards should be preferred affordable housing sites; geographic distribution concerns, and the role of regional government. Out of the $130 million allocation for fiscal 2014-15, $120 million would be offered in AHSC's main point-based competition for grants and loans. The program's smaller agricultural land preservation component, using $5 million in 2014-15, would provide ten $100,000 planning grants and a small fund for agricultural easements. That's not much money from a statewide point of view. But for 2015-16 and beyond, the program has been promised a continuous appropriation thereafter of 20% of the annual Greenhouse Gas (GHG) Reduction Fund created by cap-and-trade proceeds. Under the proposed SGC guidelines for the funding competition, at least 40% of that funding would be reserved for projects that meet the program's own definition of transit-oriented development (TOD). At least 30% would be reserved for less housing-oriented and smaller Integrated Connectivity Projects (ICP). (See http://www.cp-dr.com/articles/node-3578 for a detailed initial review of the draft.) Staff at the meeting described the TOD and ICP competition areas as mutually exclusive "doors" or "buckets". Vehicle miles traveled (VMT) would be the primary measure of GHG reduction. There were critics of the recommendation to reserve 40% of the money for projects that by definition must be on or near dense transit routes. Natural Resources Secretary John Laird questioned how the proportions were chosen, raised the possibility that a "complete streets" program might fall between the two "buckets", and asked, "Why divide them at all? Why not see what comes on through the door?" In public comment, Rob Wiener of the California Coalition for Rural Housing, who has been vocal at every AHSC public meeting, alleged in public comment that restrictions in the eligibility rules for TOD projects meant they "will not benefit rural communities, and in fact will not benefit most communities in the state." The housing part of the discussion was already affected by a new "public member" attending her first formal SGC meeting: Gail Goldberg, executive director of the Urban Land Institute - Los Angeles, appointed by Assembly Speaker Toni Atkins. Goldberg has been Planning Director in San Diego and in Los Angeles, and has served on the Statewide Coordinating Committee for the Urban Land Institute's California Smart Growth Initiative. She is one of two "public members" added by SB 862, the June 2014 budget bill that created the AHSC program. (See http://www.cp-dr.com/articles/node-3589 for details.) (The other public member is to be chosen by the State Senate Rules Committee. A staff member at Sen. Steinberg's office said the appointment will be made when the Senate reconvenes in December or later, and is for the new Senate President Pro Tem, Sen. Kevin deLeon, to consider alongside his appointees to the Rules Committee.) At the SGC meeting, Goldberg elicited staff explanations that every TOD project must have an affordable housing component, whereas ICP projects needn't -- but that, since half the funding block must go to affordable housing, most projects would be likely to have some affordable housing. Later she spelled out a distinction that not all housing drafters make: between "displacement and replacement, which are two separate issues." One public commenter asked the Council to make anti-displacement measures a threshold requirement for all projects rather than only granting extra points for such measures, as the current draft guidelines would. Pressure from Bay Area and other northern and coastal areas was evident in a staff report posted with the AHSC agenda item. On geographic distribution of funds, it said, "SGC and the implementing state agency and department staff see merit in designing the AHSC Program to account for the distribution of funds statewide. California's cities and communities statewide are diverse and vary in market dynamics, community need, capacity to manage and deliver projects, track greenhouse gas emissions, population density and size, and the availability of local resources. The method to account for geographic distribution of funds is still undetermined." The phrases about "geographic distribution" may refer to controversy over perceived slighting of the Bay Area in CalEPA's CalEnviroScreen 2.0 mapping tool for environmental, public health and socioeconomic factors. CalEPA has proposed to use CalEnviroScreen in defining "disadvantaged communities" under SB 535. The AHSC program must use 50% of its grant money to benefit communities that fit the SB 535 definition. Bay Area legislators and others have protested that the CalEnviroScreen map tends to favor inland areas of the Central Valley and Southern California. (See http://lat.ms/1sq0Qao and detailed discussion, including CalEPA officials' responses, at http://www.cp-dr.com/articles/node-3570.) Laird warned that geographic distribution requirements could be "an absolute nightmare," where an arbitrary line drawn across a map could mean "you always had applications that weren't a hundred percent in the right place." The staff report for the meeting reopened a question that has been raised in SGC and ARB/CalEPA workshops and written public comments about the distinction between disadvantaged physical locations and disadvantaged people. The report invited discussion of whether "disadvantaged communities" -- meaning census tracts identified by CalEPA as facing exceptional burdens -- may be served by improving affordable housing in "high opportunity areas". A similar question was raised in past workshops by the East Bay Housing Organizations among other advocacy groups. Several housing advocates have expressed a similar notion in negative form: that it may not help disadvantaged people to place affordable housing in areas that are defined as "disadvantaged" for being environmentally hazardous places to live. At least one Council member echoed that thought at the meeting. The Air Resources Board adopted guidelines September 18 on defining benefit to disadvantaged communities under SB 535. Those guidelines will affect the AHSC program in common with other programs for cap-and-trade auction proceeds. The CalEPA designations of "disadvantaged" census tracts had been expected by Tuesday, September 30 but had not yet appeared as of October 7. The Air Resources Board Web page for cap-and-trade auction proceeds, which has been tracking both the ARB and the CalEPA processes on disadvantaged communities, was revised as of October 2 to reflect the September 18 ARB action, but it did not provide any new material on census tract designations. See http://www.arb.ca.gov/cc/capandtrade/auctionproceeds/upcomingevents.htm. At the meeting, in public comment, a speaker from the Infill Builders Federation said some members who develop affordable housing "are trying to get away from gentrification," hence were hoping to serve disadvantaged communities with affordable housing without necessarily siting projects in the heavily polluted and impoverished neighborhoods identified as "disadvantaged" by CalEnviroScreen. She noted that many neighborhoods, especially in the Bay Area, have varied income levels, and it can be a goal to avoid neighborhoods that have single income levels. At least one Council member called for serious attention to technical assistance for potential grant applicants who may be less prepared to file successful applications, such as towns whose planning departments have been cut back. There was a definite sense of unfinished business on the role of metropolitan planning organizations (MPOs) in selecting and coordinating projects. The staff report describes an "initial concept for coordinated review... currently being developed" that is largely new since the September 23 guidelines. It "would allow for MPO technical review of program thresholds, specifically GHG quantification and SCS application in Phase 1. In the Phase 2 Full Application, MPOs would concurrently review applications in conjunction with the State to identify priority projects within their respective region ." Discussion at the meeting was actually less specific on how strongly the MPOs' recommendations would be allowed to affect outcomes. Laird said the Legislature had rejected a provision that would have given the MPOs a formal role and he didn't want to see that issue "re-litigated" in the guidelines. The staff report for the meeting also invited discussion on "a more precise measure" for each project's effect on GHG reduction and on vehicle trips, suggesting a retreat from the draft guidelines' suggestion to express GHG reduction "relative to scale and cost of the project." Some Council members called for more specific measurement approaches to GHG reduction. Materials from the October 6 SGC meeting, including a link to the staff report, are at http://sgc.ca.gov/s_100614meetingmaterials.php. That link is also where the video of the meeting is most likely to appear. The AHSC portion begins about an hour and 15 minutes into the session and runs almost two hours. Comments on SGC's proposed AHSC guidelines are due October 31. Workshops to take public comment on the main guidelines are scheduled for October 23-28 around the state, in all cases by means of pre-reserved free tickets available via http://www.sgc.ca.gov/docs/AHSC_October_Workshop_Notice.pdf. Separate workshops on the agricultural guidelines will be October 24 in Oroville, October 29 in Bakersfield, and October 30 in Watsonville. The announcement, posted October 7, is at http://www.sgc.ca.gov/docs/SALC_October_Workshop_Notice_FINAL.pdf. The SGC is scheduled to approve final guidelines at its next meeting December 11.

Attached are copies of the October 2 Kern Water Bank ruling and the statements from the Kern Water Bank Authority.

Speaker Toni Atkins of the California Assembly on October 2 appointed Gail Goldberg to one of two new public-member positions on the Strategic Growth Council (SGC). The SGC is about to set major aspects of policy for the Affordable Housing and Sustainable Communities cap-and-trade grantmaking program. (See prior coverage at http://www.cp-dr.com/articles/node-3578.) Goldberg is executive director of the Urban Land Institute -- Los Angeles. Atkins' announcement statement noted Goldberg's record includes service as planning director for both Los Angeles and San Diego. As San Diego's planning director, Goldberg championed the "City of Villages" infill development strategy. Later as Los Angeles' planning director under Mayor Antonio Villraigosa, she kick-started long-delayed community plans including the controversial Hollywood community plan and took the lead in promoting Villaraigosa's "elegant density" concept. The Urban Land Institute's response to the appointment provides further detail on Goldberg's career, board memberships and honors, which have included service on the Statewide Coordinating Committee for the Urban Land Institute's California Smart Growth Initiative. SB 862 , the budget bill that created the Affordable Housing and Sustainable Communities Program, added two "public members" to the SGC: one to be chosen by the Speaker of the Assembly and the other by the State Senate Rules Committee . Goldberg is the Speaker's choice. As of this writing there was no word on an appointment from the Rules Committee. Until this year the SGC had eight board members: the Director of State Planning and Research, six state agency secretaries, and one "public member" appointed by the Governor, who is currently billionaire Bob Fisher. SB 862 reads in part: "The public members shall have a background in land use planning, local government, resource protection and management, or community development or revitalization and shall serve at the pleasure of the appointing authority."

The Merced County Association of Governments board approved a Regional Transportation Plan and Sustainable Communities Strategy September 25. Choosing between a "Scenario A" that assumed continuing growth trends, and a "Scenario B" that presumed a 35% density increase over current trends, the board chose "B". Neither version meets the Air Resources Board's prescribed goal of reducing greenhouse gas emissions 10% by 2035, so an Alternative Planning Strategy will need to be prepared as required under SB 375. The fairness of San Joaquin Valley county-by-county goals is an ongoing matter of debate. See, e.g. http://www.cp-dr.com/articles/node-2797. A staff report included in the MCAG September 27 agenda said that, if considered as a three-county group, Merced, Stanislaus and San Joaquin Counties would meet the 10% goal, though Merced County by itself would not. See http://www.mcagov.org/agendacenter for the September 25 agenda and staff reports and http://www.mcagov.org/209/2014-Regional-Transportation-Plan for the plan. LA County Regional Planning approves first of three major Antelope Valley documents The Los Angeles County Regional Planning Commission voted September 27 to approve the Antelope Valley Area Plan Update. The measure is the first among three major land use documents affecting large tracts of currently open land across the northern and northeastern desert lands of unincorporated LA County. The plan concentrates development in three "Economic Opportunity Areas" (EOAs) and increases the dimensions of Significant Ecological Areas (SEA) but may change their effect. It sets the zoning stage for a future specific or community plan to build the proposed Centennial new town along Highway 138. The Antelope Valley Press, available by subscription at http://www.avpress.com, reported the approval vote was unanimous after an amendment reduced the application of SEA designations to the EOA affecting the Centennial site. Developers affiliated with the Tejon Ranch have proposed to build 23,000 housing units there. However, the paper reported the most discussed concern at the meeting was whether a broad agricultural zoning change would make large solar arrays easier to build. The county's public site for the September 27 meeting is at http://1.usa.gov/1nG0daM. Plan documents are available via http://planning.lacounty.gov/tnc. The same site links to materials on the Draft EIR for the plan, which is still open for public comment through October 6. In a separate but closely related process, Los Angeles County is revising the SEA element of its General Plan at http://planning.lacounty.gov/sea. A public hearing with the matter on its agenda is set for October 8 but a vote on the proposed SEA Ordinance is not expected that day. See http://planning.lacounty.gov/generalplan/meetings. SEAs exist throughout the county but most prominently in northern areas addressed by the Antelope Valley planning process. HUD opens competition for $1 billion in resilience funds In a new commitment to framing public services as disaster preparedness, HUD announced a competition for $1 billion in "disaster resilience" funds. See https://www.hudexchange.info/cdbg-dr/resilient-recovery for the HUD site. Smart Growth America has announced a webinar on the program for October 8. Details are at http://bit.ly/1pEirUf. The grant program announcement follows a prior group of grants by the Rockefeller Foundation to cities to hire "Chief Resilience Officers. For coverage of the Rockefeller-supported local programs see e.g. http://www.planetizen.com/articles/node-71123. Transbay Transit Center deal uncertain It's still unclear whether the Mello-Roos tax district deal among Transbay Transit Center landlords and San Francisco officials will survive a breakdown in negotiations. See http://bit.ly/1vu5ByG for San Francisco Chronicle coverage. The deal is to help finance the downtown Transbay Tower and Caltrain extension. In other news -- HUD's Office of Inspector General issued a report at http://1.usa.gov/1sLXbni criticizing Pomona's use and monitoring of federal Neighborhood Stabilization Program funds. It recommended that the city pay back $78,155 to the program and "support or repay" $584,148 in further spending. The Fehr and Peers consulting firm announced it would make presentations about SB 743 jointly with OPR on October 30 in the Bay Area. The Bakersfield Press-Enterprise reported that Palen Solar Holdings withdrew its application for a license to build a solar array feeding a 750-foot tower in Riverside County. See http://www.pe.com/articles/solar-750823-palen-project.html.Virtu Investments bought the big Natomas Ridge complex in Sacramento. See http://bit.ly/YIhTXs. The California Public Utilities Commission, Sacramento Area Council of Governments, and others have written to Benicia city officials urging them to study the impacts more deeply before approving a Valero Refining Company plan to bring two oil trains a day across Sacramento-area tracks. See http://bit.ly/1rmuHg5. Kern County has already approved a large oil train plan to run to a refinery in Bakersfield. See http://bit.ly/1rWMZrM. The three-foot buffer law for cyclists is now in effect: http://sacb.ee/YPrigv. Marin County and the City of Oakland are talking about rent control. See http://bit.ly/1nGp7Hs and http://bit.ly/1uaehtJ.San Francisco Chronicle architecture critic John King wrote a favorable review of Fremont's planning for the Warm Springs BART area, suggesting it would outdo San Francisco's Mission Bay by accepting more diverse and welcoming designs. See http://bit.ly/1mn0H4Q.

In this review of Governor Brown's signing and veto decisions, which by law were due September 30, we start with outcomes on some bills previously covered by CP&DR during the year, then move on to excerpts from the "Greatest Hits" list maintained by Senate Governance and Finance Committee staff: Within a day of his deadline for signing decisions, Gov. Jerry Brown vetoed AB 2280 late September 29. Carried by Assemblymember Luis Alejo, D-Salinas, AB 2280 would have revived redevelopment-style tax-increment financing in narrowly chosen urban areas, with 25% affordable housing set-asides, to bring back a narrowly focused form of tax-increment financing usable in populous cities. AB 2280 had passed the Legislature after extended negotiations among business, local government, and housing advocates.(See http://www.cp-dr.com/articles/node-3563 .) The bill represented the latest attempt by the Legislature to revive redevelopment in a more limited form - and the second time in the last three years that Brown has vetoed such a bill. (There was no veto last year because Senate leader Darrell Steinberg chose not to forward a bill to Brown's desk.) In the same signing/veto list issued late September 29, Brown vetoed other redevelopment bills including Steinberg's SB 1129 post-Redevelopment cleanup measure. He also vetoed Assembly Speaker Toni Atkins' AB 1999 historic rehabilitation tax credit and Assemblymember Jose Medina's AB 1399 California New Markets Tax Credit. See http://gov.ca.gov/news.php?id=18741. Brown's veto messages are linked from the announcement press releases. The AB 2280 veto message reads in part, "I applaud the author's efforts to create an economic development program, with voter approval, that focuses on disadvantaged communities and communities with high unemployment. The bill, however, unnecessarily vests this new program in redevelopment law. I look forward to working with the author to craft an appropriate legislative solution." Brown sounded even less pleased with AB 2493, saying "The cost to the general fund to backfill schools could be significant, to the tune of $500 million." For details on AB 2280's history and surrounding politics, see comparisons mentioned in CP&DR's prior coverage of SB 628, which the Governor signed on September 29. (See prior coverage at http://www.cp-dr.com/articles/node-3563 .) Appeals to Brown to sign AB 2280 had been published by a politically broad coalition of business and housing advocates on the League of California Cities site at http://bit.ly/1Bdj51w , and by top officers of the American Planning Association's California chapter at http://bit.ly/1mTiiC1 . Some of this year's major land use bills that were signed or awaiting signature this month are discussed more fully in past CP&DR news briefs at http://www.cp-dr.com/articles/node-3564 and http://www.cp-dr.com/articles/node-3580 . They include: - SB 270 , the first-ever statewide ban on single-use plastic bags in the United States, was signed early September 30. See http://gov.ca.gov/news.php?id=18742 . - The Pavley-Dickinson groundwater package, AB 1739 , SB 1168 , and SB 1319 , signed September 16 - see http://gov.ca.gov/news.php?id=18701 . Sacramento Bee coverage is at http://bit.ly/XdAZ6S and a National Geographic analysis of the expected delayed effects is at http://bit.ly/1pjFC61 . - AB 52 , the CEQA bill on consultation with Native American tribes over projects that may affect tribal cultural resources. Signed September 25: http://gov.ca.gov/news.php?id=18726 . - SB 1077 , to create a pilot program testing an approach to vehicle taxation based on measuring miles traveled, signed. - Six bills were signed September 21 on electric vehicles and high-occupancy toll lanes. See http://gov.ca.gov/news.php?id=18720 . - SB 1183 and AB 1193 , benefiting bike lanes and bike paths, signed. - SB 1300 on public disclosures by refineries, signed. - AB 141 , Treasure Island Transportation Management Act, signed. - AB 523 , allowing interest reductions on public loans to rental housing developments, was signed. See http://gov.ca.gov/news.php?id=18715 . - AB 2067 and SB 1036 , urban water management plans, were signed. Governor Brown made a last-day decision, on September 30, to sign SB 968 , the Martin's Beach coastal access bill. See http://www.gov.ca.gov/news.php?id=18744 . In the meantime a court ruling in favor of public access was issued in the Surfrider Foundation's suit, San Mateo Superior Court Case No. CIV 520336; the decision is available at http://openaccess1.sanmateocourt.org/openaccess/civil/default.asp . On Sunday the Governor vetoed AB 69 and AB 1521 , relief bills for new and newly expanded Inland Empire towns - including Jurupa Valley, which may now have to disincorporate. The veto messages are linked via http://gov.ca.gov/news.php?id=18738 . For detailed past coverage see http://www.cp-dr.com/articles/node-3561 .For post-veto impact coverage from the Press-Enterprise see http://www.pe.com/articles/valley-750953-governor-vetoes.html . On September 30 Brown signed AB 1537 , to redefine Marin County as "suburban" for affordable housing density zoning purposes. See http://www.gov.ca.gov/news.php?id=18744 . For past coverage see http://www.cp-dr.com/articles/node-3561 . The Governor did sign AB 1513 , possession by declaration, a pilot program directed against squatters that some tenant and criminal defense advocates fear could criminalize new aspects of homelessness and erode tenants' rights to standard unlawful detainer process. See http://gov.ca.gov/news.php?id=18733 for the signing announcement; see the earlier legislative analyses on the official Legislature page for summaries of the debate. The Governor's September 26 signing list, in press release form at http://gov.ca.gov/news.php?id=18731 , included AB 2282 on building standards for recycled water systems. His main September 27 signing list, at http://gov.ca.gov/news.php?id=18733 , included several measures on affordable housing and post-redevelopment law. An additional September 27 list highlighting veterans' bills included signatures on some measures relevant to land use and housing. See http://gov.ca.gov/news.php?id=18732 . A September 28 signing list at http://gov.ca.gov/news.php?id=18736 emphasized elder care and seniors' bills. Lists got thicker after that as the deadline approached - see http://gov.ca.gov for the full set of press releases. From the SGF 'Greatest Hits' list As to the rest of the bill-signing picture, staff at the Senate Committee on Governance and Finance have again performed the major public service of preparing a "Greatest Hits" list of major bills affecting public finance and local governance. The final memo was posted late September 30 under the "2014" link at http://sgf.senate.ca.gov/legislation . The following is derived from the "Greatest Hits" list, edited to focus on bills in categories related to land use and skipping bills that didn't pass the Legislature at all. To check on bills not mentioned here, see SGF's posted list, the Governor's press site at http://gov.ca.gov , and the Legislature's bill tracking site at http://leginfo.legislature.ca.gov/faces/billSearchClient.xhtml . Descriptions below are by the legislative staff. Links to articles and sites other than the Legislature's are CP&DR's: LAFCOs & Boundary Changes AB 2156 (Achadjian) adds joint powers agencies and joint powers authorities to the list of entities LAFCOs may request information from for purposes of conducting studies. Signed - Chapter 21, Statutes of 2014. AB 2762 (Assembly Local Government Committee) proposes several changes to laws affecting local government organization and reorganization. Signed - Chapter 112, Statutes of 2014. Land Use Planning & Development SB 1353 (Nielsen) repeals the sunset dates in statutes that allow counties to increase the assessed values of Williamson Act land and divert the resulting property tax revenues. Signed - Chapter 322, Statutes of 2014. AB 2188 (Muratsuchi) requires cities and counties to adopt an ordinance streamlining the permit process for small rooftop solar energy systems. Signed - Chapter 521, Statutes of 2014. AB 2241 (Eggman) modifies fees charged when contracting parties rescind a Williamson Act or Farmland Security Zone contract to enter a solar-use easement contract, and allows the county to keep 50% of the rescission fee. Signed - Chapter 582, Statutes of 2014. Local Finance & Infrastructure SB 69 (Roth) establishes vehicle license fee adjustment amounts for newly incorporated cities. Vetoed. Veto message at http://gov.ca.gov/docs/SB_69_Veto_Message.pdf . SB 614 (Wolk) allows local officials to use tax increment financing to fund infrastructure improvements in disadvantaged unincorporated communities. Signed - Chapter 784, Statutes of 2014. SB 628 (Beall) allows local officials to create Enhanced Infrastructure Financing Districts. Signed - Chapter 785, Statutes of 2014. SB 936 (Monning) allows the Monterey Peninsula Water Management District and other financing entities to issue water rate relief bonds to finance water supply infrastructure. Signed - Chapter 482, Statutes of 2014. - see http://www.cp-dr.com/articles/node-3580 . AB 1521 (Fox) changes the formulas for calculating annual vehicle license fee adjustment amounts to account for territory annexed to cities since 2004. Vetoed. Veto message at http://gov.ca.gov/docs/AB_1521_Veto_Message.pdf . AB 1883 (Skinner) allows a public agency to transfer its interest in voluntary contractual assessments and makes several other changes to the statutes governing those assessments. Signed - Chapter 599, Statutes of 2014. AB 2119 (Stone) allows a county board of supervisors to impose a transactions and use tax within the county's unincorporated area with the approval of voters within that area. Signed - Chapter 149, Statutes of 2014. AB 2170 (Mullin) specifies that the common powers that public agencies may jointly exercise pursuant to a joint powers agreement include the authority to levy a fee or a tax. Signed - Chapter 386, Statutes of 2014. AB 2211 (Ting) requires each county to make available to taxpayers on its internet website a graph visualization of how ad valorem property tax revenues are allocated countywide. Vetoed . Veto message at http://gov.ca.gov/docs/AB_2211_Veto_Message.pdf . AB 2274 (Gordon) makes several changes to the California Debt and Investment Advisory Commission's authorizing statute. Signed - Chapter 181, Statutes of 2014. AB 2292 (Bonta) adds public capital facilities or projects that include broadband to the types of facilities that an infrastructure financing district can fund. Signed - Chapter 783, Statutes of 2014. AB 2618 (Per-z) amends the Property and Business Improvement District Law of 1994 to conform its provisions to constitutional requirements established by Prop 218. Signed - Chapter 240, Statutes of 2014. Local Powers & Governance SB 827 (Liu) extends, until January 1, 2020, the sunset date on statutes allowing Los Angeles County to charge fees and mail notices related to recorded real estate documents. Signed - Chapter 65, Statutes of 2014. AB 155 (Alejo) allows the Monterey County Water Resources Agency to use counties' design-build contracting procedures to construct a pipeline or tunnel connecting two lakes owned and operated by the agency. Signed - Chapter 865, Statutes of 2014. AB 745 (Levine) allows a Regional Park and Open Space District's general manager to enter into non-construction contracts worth less than $25,000 without a formal bid process. Signed - Chapter 42, Statues of 2014. AB 1963 (Atkins) extends, until January 1, 2016, the date by which the Department of Finance must approve a redevelopment successor agency's long-range property management plan. Signed - Chapter 146, Statutes of 2014. AB 2551 (Wilk) requires statement on total cost of debt service to be included with sample ballot information on local agencies' bond elections. Signed - Chapter 908. Statutes of 2014. Parcel Taxes AB 2109 (Daly) requires the State Controller to report annually on locally assessed parcel taxes and requires local government to provide information required by the Controller to complete the report. Signed - Chapter 781, Statutes of 2014. Property Taxes SB 1113 (Knight) extends the deadline for County Tax Collectors to refund taxes for the disabled veterans' exemption from four to eight years . Signed - Chapter 656, Statutes of 2014. SB 1203 (Jackson) cancels assessments on low-income housing excluded from the welfare exemption. Signed - Chapter 693, Statutes of 2014. AB 777 (Muratsuchi) enacts a property tax exemption for property used in space flight. Signed - Chapter 13, Statutes of 2014. (See http://www.cp-dr.com/articles/node-3564 .) AB 1760 (Chau) prohibits local agencies from imposing payment-in-lieu-of-taxes (PILOT) agreements; presumes PILOTs don't affect a low-income housing project's welfare exemption. Signed - Chapter 671, Statutes of 2014. AB 2231 (Gordon) revises and reenacts the senior citizens' and disabled citizens' property tax postponement program. Signed - Chapter 703, Statutes of 2014. AB 2257 (Cooley) diverts excess proceeds from tax sales from taxing entities to the county. Signed - Chapter 501, Statutes of 2014 . AB 2415 (Ting) requires property tax agents to register with the Secretary of State's Office. Vetoed . Veto message at http://gov.ca.gov/docs/AB_2415_Veto_Message.pdf. Redevelopment (For prior CP&DR coverage on this year's post-redevelopment bills see primarily http://www.cp-dr.com/articles/node-3563 , http://www.cp-dr.com/articles/node-3492 and http://www.cp-dr.com/articles/node-3480 .) SB 1129 (Steinberg) amends several statutes governing redevelopment agencies' dissolution. Vetoed . Veto message at http://gov.ca.gov/docs/SB_1129_Veto_Message.pdf. AB 471 (Atkins) allows infrastructure financing districts to include portions of former redevelopment project areas and amends several statutes governing redevelopment agencies' dissolution. Signed - Chapter 1, Statute of 2014. AB 1450 (Garcia) directs how a county auditor must allocate specified revenues derived from an extraordinary property tax rate approved by voters to pay for pension programs. Vetoed . Veto message at http://gov.ca.gov/docs/AB_1450_Veto_Message.pdf. AB 2280 (Alejo) allows local governments to form Community Revitalization and Investment Authorities to administer economic development and affordable housing programs. Vetoed . See http://gov.ca.gov/news.php?id=18741 . Veto message at http://gov.ca.gov/docs/AB_2280_Veto_Message.pdf. AB 2493 (Bloom) allows redevelopment successor agencies to spend proceeds from bonds issued by former redevelopment agencies in 2011. Vetoed . Veto message at http://gov.ca.gov/docs/AB_2493_Veto_Message.pdf State Bonds & Indebtedness AB 1471 (Rendon) replaces the $11.4 billion water bond on the November 2014 ballot with a new $7.2 billion general obligation bond and enacts the "Water Quality, Supply, and Infrastructure Improvement Act of 2014." Signed - Chapter 188, Statutes of 2014. State Personal & Corporate Income Taxes AB 1393 (Perea) conforms state law to federal law for mortgage debt forgiveness. Signed - Chapter 152, Statutes of 2014. AB 1399 (Medina) enacts the California New Markets Tax Credit. Vetoed . Veto message at http://gov.ca.gov/docs/AB_1399_Veto_Message.pdf. AB 1839 (Gatto) enacts $1.6 billion in tax credits for qualified motion picture and television production. Signed - Chapter 413, Statutes of 2014. AB 1999 (Atkins) allows a 20% or 25% tax credit for rehabilitation of a certified historic structure. Vetoed . Veto message at http://gov.ca.gov/docs/AB_1999_Veto_Message.pdf. AB 2434 (Gomez) excludes from gross income amounts received as a rebate, voucher, or other financial incentive issued by a local water agency for participation in a turf removal water conservation program. Signed - Chapter 738, Statutes of 2014.

A few weeks ago I stopped by Bacara for the first time. Bacara is a superfancy resort along the Gaviota Coast, just off Highway 101 west of the UC Santa Barbara campus. With a rack rate of maybe $700 a night for a room, it's far from cheap. And it's beautifully designed – a collection of Santa Barbara-style white buildings, two and three stories, tumbling down a hill toward the ocean. It's so beautiful, in fact, that it's easy to forget that Bacara – or, more precisely, an earlier proposal for a luxury resort on the site – prompted the court case that made the California Environmental Quality Act what it is today. When you ask experts what the most important case in the 44-year history of CEQA is, usually they'll say Friends of Mammoth v. Board of Supervisors of Mono County , 8 Cal.3d 247 (1972) – the case establishing that government approvals of private development projects are subject to environmental review. And there's no question that Friends of Mammoth is a seminal case. But for my money, the defining CEQA case is Citizens of Goleta Valley v. Board of Supervisors , 52 Cal.3d 553, handed down by a much more conservative California Supreme Court on New Year's Eve 1990. It was Citizens of Goleta Valley that cleared the way for the eventual construction of Bacara. More important, it transformed CEQA from a project-killing mechanism into a mitigation machine. As a result, almost a quarter-century later, all kinds of organizations use CEQA's mitigation power to gain leverage (and that's a polite word) over all kinds of things. And that, more than anything else, is the reason it's impossible to repeal CEQA or even reform it in a truly meaningful way. Environmental and citizen groups have always used CEQA to gain leverage, of course – that's the point of the law. But today, unions, business trade associations, rival local government agencies, and even the building industry all use CEQA to gain leverage over some local political process, and in most cases there's no other way for them to get so much leverage. That's what Citizens of Goleta Valley changed. At issue was whether the private owner of the Bacara property had to consider alternative locations for the project as part of the alternatives analysis under CEQA. The Supreme Court, which was then newly more conservative thanks to appointments by Gov. George Deukmejian – said no. But more than that, the Court – in an opinion written by Deukmejian's longtime friend Armand Arabian – basically told environmental groups to stop using CEQA to try to kill projects. The purpose of CEQA, Arabian said, was not to re-fight the local general plan's land use decisions in an environmental impact report, which is what the plaintiffs were trying to do. The purpose, he reminded everybody, was to inform the public about the environmental consequences of governmental decisions and mitigate the damage as much as possible. The switch from killing projects to extracting mitigation meant, essentially, a switch from CEQA as blunt instrument to CEQA as a means to specific ends. Over time, more and more organizations saw that, through CEQA, they could gain unique political leverage via CEQA, whether they had environmental concerns or not. For example, CEQA has been consistently used by labor unions to try to shut down retail development projects they don't like – especially Wal-Marts – for reasons that have to do with labor practices, not environmental damage. This has led to many lawsuits. It has also led Wal-Mart to attempt to evade CEQA by trying to get projects approved via ballot initiative – a practice that was upheld recently by the state Supreme Court in Tuolomne Jobs & Small Business Alliance v. Superior Court of Tuolomne County . But it's not just unions. More and more, CEQA has also become a tool that business groups use to try to quash regulation they don't like. Take the recent city-by-city battle in California over banning single-use plastic bags. Whatever you think of this type of regulatory approach, it's hard to argue that banning plastic bags is bad for the environment. Indeed, when I was working in San Diego, our back-of-the-envelope estimate was that the ban would eliminate the use of 500 million plastic bags per year in the city. My view – highly personal but strongly held – is that a plastic-bag ban is a slam-dunk exemption under Class 7 and 8. Still, every time cities or counties proposed such a ban, they had to look over their shoulders for the plastics industry, which was sure to file a lawsuit unless the locality undertook an environmental impact report that used the industry's own studies about the lifecycle cost of plastic versus paper bags. The plastics industry was singularly unsuccessful in this litigation, losing a Supreme Court case from Manhattan Beach and appellate cases from Marin County and San Francisco  (which the Supreme Court declined to take – see http://www.cp-dr.com/articles/node-3426.) Even after that, cities and counties still had to watch out for the plastics industry, because the Supreme Court had not laid down a conclusive, all-encompassing ruling. (The recent passage of the state's plastic-bag ban, SB 270, which Governor Jerry Brown has now signed, put this question to rest.) Developers, who often complain the most about CEQA, frequently invoke the law to sue each other in order to stop development projects and gain a competitive advantage. They also sometimes use CEQA to challenge government policies they don't like – as when the California Building Industry Association tried to claim that the creation of significance thresholds under CEQA creates a significant impact that must be analyzed under CEQA. (The appellate court didn't buy the argument – see http://www.cp-dr.com/articles/node-3395.) Obviously, if the building industry had won that case, the consequences on all future CEQA analysis would have been profound – and the building industry wouldn't have been happy. (Although that case, CBIA v. BAAQMD, is now before the state Supreme Court – see  http://bit.ly/1wOXR9o – the high court granted review only on the separate issue of when if ever CEQA may "require an analysis of how existing environmental conditions will impact future residents or users (receptors) of a proposed project".) Even cities and counties, which also often complain about being hamstrung by CEQA, are skeptical of any change that suggests the possibility of surrendering leverage. The best current example is the local government hand-wringing over taking traffic congestion level of service standards out of CEQA as a result of SB 743. (See http://www.cp-dr.com/articles/node-3571.) It's been so long since traffic engineers used anything other than CEQA to extract traffic improvements from developers that they can't figure out how it can be done without CEQA. So that's the crux of the problem: CEQA provides a way for anybody who wants anything out of a public agency to get some leverage over the situation – whether that's unions, environmentalists, businesses, developers, and even local governments themselves. And no matter how much all these folks say they want CEQA streamlined, they don't want anything to change that will cut into their leverage. Until that equation changes, you won't see much in the way of meaningful CEQA reform.

California's Fourth District Court of Appeal heard oral arguments in August on the major suit by conservation groups against the San Diego Association of Governments over its Regional Transportation Plan and Sustainable Communities Strategy. The court took the case under submission August 27 so a decision is expected in the next month or two. For the online docket see http://bit.ly/1uSBoHd. The case concerns the first Sustainable Communities Strategy that was issued under SB 375. The Cleveland National Forest Foundation, the Center for Biological Diversity and others contend that it does not adequately consider and explain public health impacts of projected freeway expansions and that it does not respond adequately to the 2080 greenhouse gas reduction targets set in Executive Order S-3-05. CityLab wrote up the dispute in 2012 at http://www.citylab.com/commute/2012/01/fight-future-san-diego/910/. Another administrative record case favors city officials' cost recovery The Fourth District Court of Appeal held San Diego County could recover from petitioners the cost of attorney and paralegal time to prepare an administrative record on a CEQA cause of action. By the court's account, the petitioners initially elected to prepare the administrative record, but after a disagreement over the record's proper contents they voluntarily dropped their CEQA cause of action; the county then told the court it would prepare the record at the petitioners' expense and they did not object; after the county rushed to prepare and present an 18,000-page record in a few days, the petitioners dismissed their whole case. The petitioners were former owners of a target shooting range in Chula Vista who alleged that the current owner's environmental remediation plan for the site should not have been approved without an EIR and other additional review. The court found in a published portion of the case that the petitioners had to pay $59,545 for the attorney and paralegal time as well as $7,093.14 for clerk and staff time and production costs. In unpublished holdings, the court said two of three entities petitioning lacked capacity to sue because they were not active legal entities, and held the court properly rejected evidence of an indemnity agreement submitted late in a reply brief. The case is The Otay Ranch, L.P., v. County of San Diego , at http://www.courts.ca.gov/opinions/documents/D064809.PDF. It follows a September 15 ruling by the First District Court of Appeal that allowed a lead agency to recover some (but not all) costs of supplementing an administrative record in Coalition for Adequate Review v. City and County of San Francisco (See Katherine Hart's writeup of the San Francisco case for Abbott & Kindermann at http://bit.ly/1uYA2wI.) Governor's concurrence in federal casino ruling not subject to CEQA The Third District Court of Appeal found the Governor's concurrence in a federal casino review decision was not subject to CEQA because Governor Jerry Brown was not himself a "public agency" under CEQA definitions. The case is Picayune Rancheria of Chukchansi Indians v. Brown , available at  http://www.courts.ca.gov/opinions/documents/C074506.PDF The Turtle Talk blog on American Indian legal issues has copies of briefs in the matter at http://bit.ly/1ovVPWM. CEQA held not to cover freight operations approval The First District Court of Appeal upheld a Marin County trial court decision that CEQA review is not required for a contract to use rail lines. The contract would open the rails of the public North Coast Railroad Authority to use by the private Northwestern Pacific Railroad Company. Two petitioners, the Friends of the Eel River and Californians for Alternatives to Toxics, had sought CEQA review of the project's EIR, but the trial an appellate courts both held CEQA was preempted in the matter by federal law. The appellate decision summarizes extensive administrative and court disputes on various aspects of the rail line contract. The September 29 decision is Friends of the Eel River v. North Coast Railroad Authority , at http://www.courts.ca.gov/opinions/documents/A139222.PDF. Third District upholds cell phone tower permit In an unpublished decision September 29, the Third District upheld a Nevada County permit for a cell phone tower over objections that it failed to apply local zoning rules regarding visually important ridgelines. The case is Lockyer v. County of Nevada , at http://www.courts.ca.gov/opinions/nonpub/C075249.PDF.

The Coastal Commission met in Smith River this September, just three miles from the Oregon state line. The reduced two-day agenda and remote setting gave the meeting aspects of a retreat. Members used the slack in the session to raise big-picture and procedural questions – and at the end of the second day, a group of Commissioners staged a mini-rebellion seeking greater power to choose agenda items. The occasion for the agenda rebellion was a board-requested staff presentation on how the staff sets agendas. Wendy Mitchell and Jana Zimmer, with Martha McClure and others chiming in, said they wanted more power to get staff responses to questions – even complex questions requiring research – and to request a discussion or workshop on a general issue. Commissioners noted followup is difficult because Commissioners meet formally just once a month and are restrained by Bagley-Keene ethics rules from meeting informally more than two at a time. Because the discussion itself was on an informational item, no formal vote on the matter could be taken. Low-cost visitor uses In other discussion, staff confirmed plans to the Commission for two major big-picture discussions by the end of the year: a hearing in November or December on the long-awaited overarching guidance to help towns plan for sea-level rise, and a December workshop on lower-cost visitor-serving uses.   Commission chair Steve Kinsey appointed Commissioners Martha McClure and Gregory Cox, who have expressed repeated interest in protecting cheap coastal vacations, to work with Executive Director Charles Lester on planning the workshop. McClure repeated her concern that cheap beachside motels should be renovated, potentially with developers' mitigation money, and kept affordable to middle-class families who might not want to stay in the hostels or campgrounds that have been typical mitigation projects. She said, "This is near and dear to my heart because right now in Crescent City, for instance, there is a motel that the city has had to close down because of the conditions and if that motel were to be rehabilitated, there isn't anyone probably in California that would be willing to invest and pay $30,000 a room as mitigation" for low-cost visitor-serving accommodations. North state issues North Coast officials and community members were eager to use their one chance this year at the Commissioners' undivided attention. Among issues raised: - An extensive briefing on coastal development and tribal lands included presentations by District Manager Bob Merrill and Tolowa Tribe representatives Briannon Fraley and Loren Bommelyn. Part of Merrill's presentation explained the Commission's role in conducting reviews for consistency with state coastal zone management policy under the federal Coastal Zone Management Act where land use plans involve tribal lands regulated by federal agencies. The briefing starts around the one-hour, 42-minute mark of the September 10 recording at http://www.cal-span.org/media.php?folder[]=CCC. - In a presentation on Humboldt Bay Sea Level Rise Adaptation Planning, by staff analyst Melissa Kramer and consultant Aldaron Laird of Trinity Associates, Laird said major portions of northern shoreline properties depended on dikes, some of which were actively eroding. He said some became overwhelmed when annual "king tides" temporarily added a foot to local sea level, simulating the expected effects of sea level rise. Laird called for cooperation between owners of diked waterfront properties and managers of utility conduits – and highways – that the dikes protect. He said the Humboldt Bay Power Plant might have to be moved back – "it's likely to become an island". (The Eureka Times-Standard gave a detailed preview of his presentation at http://bit.ly/YAopQ3.) That led Commission Chair Steve Kinsey to wonder how local governments can "retreat from the maintenance of infrastructure without becoming responsible for the takings of the private properties that would be affected by that." (The sea level presentation starts around 2:52:00.) - Several speakers called for more enforcement staff in the northern coastal region. - The Commission approved a settlement for environmental remediation on a former mill property that had been meant to receive debris from the 2011 tsunami only temporarily, but had ended up storing it long-term. Venice Beach comes to Smith River The Commission couldn't escape Southern California beach town disputes even at the northern state line. Anti-gentrification activists from Venice Beach and Laguna Canyon followed them to Smith River. A group of Venice neighbors, some in "Saving Venice" T-shirts, criticized the cumulative impacts of profit-seeking disruption in their neighborhood: short-term Internet-mediated rentals, and projects that replace older, cheaper houses with denser new buildings. They especially contested the 664 Sunset LLC project in Venice, which would demolish two older single-family homes – acknowledged to be affordable housing – and replace them with three new ones. The owners' spokesman, Andy Liu, said "small-lot subdivision projects" like 664 Sunset promoted affordability by placing small new houses on the market. He also said they'd anticipated neighborhood objections by providing covered on-site parking for all units. Speakers who disagreed included appellant Rene Kraus, who public commenter Lydia Ponce said was still living on the property. The Commission found no substantial issue, clearing the way for the project. Robin Rudisill, chair of the Venice Land Use and Planning Committee (see http://www.venicenc.org/committees/lupc/) told the board her committee had been working with other local groups toward a more standardized project review process, currently known as the VNC Approved Expedite Project. Laguna Beach activist Sharon Fudge, who with her husband has been fighting a makeover project at the Laguna Ranch resort near their house, showed photos of gutted buildings that she said the resort's owner was presenting as a "minor health and safety upgrade." She said, "those buildings are see-through – they've been taken down to the sticks." This summer Commission staff had reluctantly allowed some work, characterized as renovations, to go forward, but the Commission prohibited outright rebuilding pending an enforcement action. Fudge insisted the buildings were being reconfigured, from small apartments that had been rented for low-cost family beach vacations into standard hotel rooms – "They are making this into a luxury resort." And she said the current owners had "stripped" a eucalyptus grove, originally set aside as a camp site for local Girl Scouts, making it into an events center for crowds so large they create traffic problems. Fudge asked the Commission to reconsider a proposed Laguna Beach LCP amendment that she said would discourage second units, saying it would make affordable stays near the beach more expensive. The Commission extended a time limit to act on that matter. Other Items - A discussion from the August meeting continued about whether or when Commissioners became responsible for avoiding ex parte contacts with landowners who were subjects of enforcement actions. Chiming in, Zimmer asked the staff to notify Commissioners when enforcement actions began, rather than leave it to them to find out. - Steve Ray of the Banning Ranch Conservancy representative warned that a suit against the Commission by a little-known plaintiff, "Horizontal Development LLC," was a part of the Banning Ranch development effort – an attempt, he said, to do the decontamination and grading work for new development under an old permit issued in 1973. The Coastal Commission's September agenda is at http://coastal.ca.gov/meetings/mtg-mm14-9.html, as annotated with outcomes and including links to staff materials. In actions separate from the Commission meeting: - The Commission staff reached a settlement expected to allowing U2 guitarist David Evans, known as the Edge, to build a five-house compound in the Santa Monica Mountains. For LA Times coverage see http://lat.ms/1BVTfBt. - The Monterey County Weekly reported further hitches for the Monterey Bay Shores Resort plan in Sand City, despite the apparent settlement reached with the Commission last spring. It said a lender had filed court papers seeking to foreclose on the project site for an allegedly defaulted debt and that Coastal Commission staff were not happy with project proponent Ed Ghandour's progress toward meeting conditions of the settlement. See http://bit.ly/1pmowpf for details. - The Del Mar Times reported Solana Beach had begun a study to decide what compensation is due to the public from property owners who block coastal access with seawalls. See http://bit.ly/1oqSzvL for details. - News reports and editorials gave cheerful and ample coverage to the San Mateo Superior Court decision favoring coastal access at privately owned Martins Beach. The court opinion issued September 24 is captioned as a tentative statement of decision but it was widely interpreted as an order requiring software billionaire Vinod Khosla to open the beach to public use. See San Francisco Chronicle coverage at http://bit.ly/ZO3eem and Mercury News coverage at http://bit.ly/1nAP37f. In a further action supporting coastal access, Governor Jerry Brown on September 30 signed SB 968, the bill instructing the State Lands Commission to begin negotiations for purchase of an access route to the beach that, after a year, could be followed by an eminent domain action. See http://www.gov.ca.gov/news.php?id=18744.

The Office of Planning and Research (OPR) staff members working on the SB 743 transportation impact metric are showing signs they may be receptive to criticism, possibly slowing the CEQA Guidelines changes down and rethinking the "regional average" metric for vehicle miles traveled that they proposed last month. In a September 25 webinar so popular it overloaded the meeting software, senior counsel Chris Calfee and senior planner Chris Ganson announced they would push back the comment deadline on the August 6 proposed draft from the original October 10 to November 21. They said the decision followed conversations with groups including the Association of Environmental Professionals and American Planning Association. New at the presentation was a distinctly tentative stance on two key aspects of the proposal. On the date for full statewide implementation – as distinct from initial implementation in transit-rich areas, or voluntary adoption where local agencies prefer the new metric – Calfee said, "We put as a placeholder January 1, 2016, but we know that that time period is likely to move, given how long the rulemaking process is likely to take." Separately he reassured listeners that the current discussion process was "pre-regulatory," to be followed by a formal rulemaking via the state Natural Resources Agency. Possibly more important, Calfee implied willingness to change the draft's proposed approach to assessing projects' VMT levels by relating them to regional average VMTs. That approach has been criticized as difficult to apply fairly to local areas that don't match the averages taken across large regional government areas. (See prior discussion at http://www.cp-dr.com/articles/node-3560.) He said OPR "would really appreciate your input on things like, what might be the appropriate recommendation for a threshold? We started out with regional average but we know others have some good ideas as well so please submit those." He said the staff knew the safety discussion needed to be further refined, "and also, give us your thoughts on whether the timing that we set out is appropriate." (On the webinar recording, which is available at http://opr.ca.gov/video/SB_743_Webinar_092614.wmv, these key comments show up around Minute 41. Note this is a different, more extended recording than the webinar recording shown at http://www.opr.ca.gov/s_sb743.php, which stops just past Minute 38.) p { margin-bottom: 0.1in; line-height: 120%; }a:link { } -->> p { margin-bottom: 0.1in; line-height: 120%; }a:link { } -->> Otherwise, in a tag-team presentation, Calfee and Ganson offered reassurances on the advantages of the SB 743 Vehicle Miles Traveled (VMT) analysis for infill projects; among much else they emphasized the tendency of existing Level Of Service (LOS) analysis, which it would replace, to impose mitigations on infill projects that are intended to reduce auto traffic congestion even if the projects are well served by transit, bicycle or foot travel. They leaned hard on the discretion the draft would still offer to local lead agencies, both in choosing VMT analysis methods and in using LOS analysis outside the CEQA context. Calfee and Ganson have repeatedly emphasized that the CEQA Guidelines will permit lead agencies to use "professional judgment" regarding both inputs and outputs of VMT models. In Q&A discussion late in the presentation, Ganson said it would be permissible, and in fact important, for local lead agencies to choose VMT measurement tools that have sensitivity to different relevant factors. He said standardized measurements may work well in some circumstances but will "miss a big part of the picture in other circumstances." As expressed earlier this month at a forum in San Diego (see http://www.cp-dr.com/articles/node-3571), the team confirmed the proposed SB 743 analysis approach could trump local general plans' analysis on the narrow issue of whether congestion and auto delay count as a significant environmental impact under CEQA. And as discussed at a prior forum during the American Planning Association - California convention (see http://www.cp-dr.com/articles/node-3576), they addressed the question whether an agency might be required by its local planning standards to increase roadway capacity as a means of avoiding congestion under an LOS analysis, hence raising local vehicle trips through the induced demand effect of added capacity. Their response in the webinar was that, as with renewable energy, projects that have mixed good and bad environmental effects must always be analyzed as a matter of overall policy, and a roadway expansion might still be pursued after adopting a statement of overriding considerations. Reactions to the SB 743 analysis during the late summer have included strongly worded attacks by the real estate firm of Holland & Knight. As initially reported at http://www.cp-dr.com/articles/node-3560, the firm responded to a list of potential mitigation measures as an impermissible attempt to expand CEQA law by pushing economic and social policies such as affordable housing near transit. At the September 25 presentation, the OPR team said the mitigation measures in question were optional suggestions derived from a list prepared by the California Air Pollution Control Officers' Association. More recently, a widely posted Sacramento Business Journal commentary by writer Allen Young at http://bit.ly/1CwNo5L quoted Holland & Knight's Jennifer Hernandez as claiming that sponsors of infill projects would be pushed by the new rules to justify projects that did not minimize vehicle trips. Comments on the draft are due by November 21 to ceqa.guidelines@ceres.ca.gov. Details related to the presentation are in a new FAQ document posted at http://www.opr.ca.gov/docs/FAQs_Regarding_SB_743_09262014.pdf and otherwise on the general OPR SB 743 site at http://www.opr.ca.gov/s_sb743.php.