It's no secret that Walmart stores have caused the entire economies of small towns to decamp for some highway strip and, ultimately, wind up in Bentonville. But at least you know a Walmart when you see it - from miles away, no less. A similarly insidious trend toward generic placelessness has been taking place in smaller-scale communities, even in many of the places that progressive planners hail as attractive, functioning communities. The Los Angeles County city of Manhattan Beach is the latest such community to rouse from its chain-induced slumber. According to a recent article in the Daily Breeze, the city's downtown has been losing many of its stalwart independent stores to higher rents and the corporations that can pay them. Advocates of the free market would call this creative destruction. But it's more than destruction: it's extinction. Once an endearing store or restaurant is gone, replaced with a bank or a Walgreens, it's gone. "We need to plan out (the area) so we don't one day end up with no local flavor," Manhattan Beach Mayor Amy Howorth told the Daily Breeze . I've seen it in my own neighborhood in West Los Angeles. The age-old stationery store, which had downsized twice, went entirely kaput three years ago. It's been replaced by a Subway, and a Citibank ATM. (Not a Citibank branch; just an ATM, entombed in a stucco wall.) Our beloved bookstore is long gone. So is the pizza place. Manhattan Beach is taking a potentially courageous step. A few weeks ago, the City Council imposed a temporary moratorium on ground-floor banks and offices through an urgency zoning ordinance. It has pledged to study ways to preserve Manhattan Beach's "small-town feel," according to Howorth. I hope that they conclude that the public good - and even the city's economic vitality - permits and requires them to do something. I've always found talk of economic development to be curious. Back in the days of redevelopment agencies, agencies tried to get something built and leased so that properties would generate tax revenue. But often it seemed that no one cared about who or what was going into the properties. A McDonald's or a FedEx store was as good as anything else. Plenty of cities seem to have the same attitude: cut the ribbon on something - anything -and it's a success. This attitude ignores one of the most basic yet least-discussed principles in economic geography: the multiplier effect. I shouldn't have to explain the multiplier effect. But, then again, I do. Most cities seem to be terrible at it. The multiplier effect means that when a clothing store, coffee shop, or burger joint is locally owned and caters to local customers, the customers' money remains in the community and then gets re-spent and re-invested. At least part of it does, anyway. It doesn't wind up in Bentonville, Seattle, or Oak Brook. And it doesn't pass into the hands of thousands of placeless, faceless, passive shareholders. As for the benefits of economies of scale, I don't buy it. I'm a journalist. I've written many an article in "third spaces," such as coffee shops (even Starbucks). I've done so in dozens of cities, and, as often as possible, in independent coffee houses, usually in increments of $2.50. I know full well that it is possible to run a coffee house without operating a proprietary network of suppliers, distributors, and designers. Plenty of entrepreneurs make a good living at it. The only difference between Common Grounds, which was doing booming business when I passed through Lexington, Kentucky, and Anastasia's Asylum, which got booted out of Santa Monica, is the rent that each has to pay. They'd otherwise be equally viable businesses, and more beneficial to their respective towns than Starbucks is. But Starbucks can afford to lose money in Manhattan Beach because it has thousands of profitable locations. A Manhattan Beach location might be a "loss leader" that exists just to strengthen the overall brand.  That's why cities have every right to regulate, or at least promote, the ownership of their private amenities. Naturally, property owners are going to bristle at this idea. One landlord expressed a predictable, and sentiment, in the Daily Breeze: "Once you start restricting who you can rent to and rejecting certain tenants, you're messing with the free market and property rights." His concerns are understandable, but they miss the point. Ever since the gavel fell on the Euclid decision, cities have been allowed to say what goes where. There's no such thing as a "free" real estate market. The retail buildings in downtown Manhattan Beach exist there - in size and appearance - only because city law has said they can. They are leased by stores, and not cattle yards and pot shops, for the same reason. Certain tenants are already excluded and included. Landlords need to balance their own understandings of "highest and best use" with those of the city and its populace. That's the bargain they make when they decide to put their money into real estate and not, say, into Lotto tickets. It's the job of city government to decide what's best for the city as a whole. In many cases, local ownership may be best. It's hard to feel super-sorry for Manhattan Beach, of course. It's paradise, with six-figure salaries all around (nine-figure salaries if you're among the professional athletes who live there). Struggling small towns and inner-city neighborhoods need the multiplier most dearly. But that's the point: if independent businesses can't survive there - in a place where people have the taste and the discretionary income to seek out something special - then where can they survive?

The California Supreme Court has ruled that an initiative is not subject to the California Environmental Quality Act even if it is adopted by a local elected body rather than placed on the ballot. "Because CEQA review is contrary to the statutory language and legislative history pertaining to voter initiatives," wrote Justice Carol Corrigan for a unanimous court, "and because policy considerations do not compel a different result, such review is not required before adoption of a voter initiative." The case involved the expansion of a Wal-Mart in the City of Sonora. In 2010, as the city was considering expansion of the Wal-Mart to sell groceries, Wal-Mart supporters circulated an initiative petition to adopt a specific plan to accommodate the proposed expansion. Rather than placing the measure on the ballot, the Sonora City Council adopted the initiative. The Tuolomne Jobs & Small Business Alliance – apparently similar to other labor-oriented groups elsewhere in the state that use CEQA to fight Wal-Marts – sued, claiming the city should have conducted a CEQA review before adopting the initiative. The Court of Appeal ruled in favor of the Jobs & Small Business Alliance, but the Supreme Court reversed. In so doing, the court reminded the plaintiffs that CEQA is just a law and its procedures must sometimes be balanced against procedures contained in other state laws. The ruling may encourage Wal-Mart to end-run CEQA-based opposition in the future by going to the ballot, at least when project approvals depend on legislative, rather than quasi-judicial, approvals. In large part, the ruling turned on the Supreme Court's interpretation of Elections Code Section 9214, which lays out the procedure for how local governments must deal with initiatives. Under the code, when presented with a valid set of signature petitions, a city council or county board of supervisors has three options – place the measure on the ballot, adopt it as is, or order a report examining the initiative's impacts, which must be produced within 30 days. This report is typically known as a "9212 Report," after the Elections Code section that lays out this option. The Supreme Court said that the Elections Code and CEQA conflict, for two reasons. First, CEQA review cannot be conducted in the time frame permitted under the Elections Code. "Direction adoption would be severely curtailed and, for many initiatives, no longer an option, because it would be impossible for cities to comply with both CEQA and the section 9214 deadlines," Corrigan wrote. Even if the time problem could be solved, Corrigan added, a CEQA review would be pointless becuase 9214 requires that a city or county choosing direct adoption must adopt the initiative "without alteration". " ities would be powerless to reject the proposed project or to require alterations in the project that would lessen its environmental impact, no matter what the review showed." The court also had to assess whether the Elections Code trumps CEQA, since both are statutes. (The direction-adoption option is not enshrined in the Constitution but was created by the legislature.) Reviewing the history of attempts to subject initiatives to CEQA via legislation – all of which have failed – the Supreme Court concluded that the it is clearly not the legislative intent to subject initiatives to environmental review. In adopting the 9212 report law in 1987, for example, the legislature "enacted the bill that gave local governments the option of obtaining an abbreviated review to be completed within the short time frame required for action on initiatives" and "specifically rejected the bill that would have required CEQA review before a land use initiative could be directly adopted or submitted to voters."  Finally, the Supreme Court addressed the question of whether direct adoption without CEQA review "offends public policy" – a valid topic for analysis, according to Corrigan, if legislative intent is unclear. The court concluded this interpretation does not offend public policy. "Appellants warn that developers could potentially use the initiative process to evade CEQA review, and that direction adoption by a friendly city council could be pursued as a way to avoid even the need for an election," Corrigan wrote. Referencing Associated Home Builders etc., Inc., v. City of Livermore , 18 Cal.3d 582 (1976), which found that state housing law trumps a local growth-control initiative, she added; "Of course, the initiative powers may also be used to thwart development. However, these concerns are appropriately addressed by the Legislature. The process itself is neutral." And, she noted, if local voters dislike the direct adoption of an initiative, they can overturn it via initiative. The Case: Tuolomne Jobs & Small Business Alliance v. Superior Court of Tuolomne County , No. S207173 (filed August 7, 2014), at http://www.courts.ca.gov/opinions/documents/S207173.PDF.

In a sweeping new set of recommendations, the Governor's Office of Planning & Research has proposed that traffic congestion no longer be considered a significant environmental impact under the California Environmental Quality Act, and that expanded roadways in congested areas be assessed for possible growth-inducing impacts. In a draft document released late Wednesday at http://www.opr.ca.gov/s_sb743.php (PDF document: http://bit.ly/1kOofPD), OPR's long-awaited white paper recommends amendments to the CEQA Guidelines to replace the "level of service" traffic congestion standard with a "vehicle miles traveled" standard in order to tether CEQA analysis more closely to other state goals, especially the greenhouse gas emissions reduction goals contained in AB 32, the state's climate change law. Among other things, OPR appears to be trying to make sure the CEQA/traffic tail does not wag the planning dog � as so often appears to happen in California. " ddressing congestion requires public agencies to balance many factors, including fiscal, health, environmental, and other quality of life concerns," OPR wrote. "Such balancing is more appropriate in the planning context where agency decisions typically receive deference." This is in keeping with a line of CEQA cases going back at least to Friends of Goleta Valley in 1990 (http://resources.ca.gov/ceqa/cases/1990/goleta_valley_123190.html), in which the California Supreme Court said that alternatives analysis under CEQA should not be used to re-fight land use decisions made in a general plan. OPR also recommends that anything above the regional VMT average should be considered a significant impact and that the approach should be phased in, applying to areas around transit stops first and all locations later. OPR's long-awaited recommendations came five weeks after the deadline called for in SB 743, last year's CEQA reform law, which called upon the agency to examine alternatives to LOS within the CEQA context. If adopted, the recommendations could have widespread implications for how traffic is mitigated under CEQA and the leverage local governments have over developers in dealing with traffic congestion issues. The recommendations will now be subject to public comment -- comments are due October 10 -- before formal amendments to the CEQA Guidelines are made. The document is sure to generate widespread discussion among those involved in planning and development in California. The OPR paper is sweeping because it challenges head-on the longstanding view that the primary goal of traffic analysis under CEQA is to identify and relieve traffic congestion � or, as the paper calls it, "automobile delay". "By focusing solely on delay, environmental studies typically required projects to build bigger roads and intersections as �mitigation' for traffic impacts," the paper states. The OPR paper proposes a news section to the CEQA Guidelines, Section 15064.3, which clarifies that "the primary consideration, in an environmental analysis, regarding transportation is the amount and distance that a project might cause people to drive" (italics mine), rather than the amount of automobile delay. Specifically, the proposal calls for a focus on vehicle miles traveled and trip generation. VMT and the Regional Average In proposing the shift away from traffic congestion, OPR is essentially proposing a shift toward vehicle miles traveled, or VMT, as the traffic standard to use in CEQA analysis. This is not surprising � OPR had given every indication that this is would be the direction � but this week's recommendations spell out in more detail how OPR imagines this would work. Although under SB 743 OPR cannot specify mandatory significance thresholds, the paper does make some recommendations about how lead agencies might set those thresholds. Among OPR's recommendations: Projects that generate greater than the regional average VMT might be considered significant. This standard would likely tie CEQA traffic analysis to the reduction in per-capita VMT called for in each region's Sustainable Communities Strategy under SB 375. Projects close to transit stops might be considered below the significance threshold. General plans and specific plans that conform with the region's Sustainable Communities Strategy might be considered below the significance threshold. Growth-Inducing Impacts Almost as bold as the proposal to switch to a VMT standard is OPR's suggestion that expanded roadways in congested areas � currently often a mitigation under CEQA � should actually be examined as a possible growth-inducing impact under CEQA. Relying heavily on a paper prepared for the Air Resources Board by Susan Handy of UC Davis and Marlon Boarnet of USC (see http://bit.ly/1opM6ER), OPR concluded that "adding new traffic lanes in areas subject to congestion tends to lead to more people driving further distances" and thus induces more travel. Thus, the OPR proposal would actually require lead agencies examine the growth-inducing impacts of adding new roadway capacity in congested areas. Dealing With Traffic Congestion Apparently anticipating pushback from local agencies accustomed to using CEQA to gain leverage over developers on traffic improvements, OPR addresses the question of dealing with traffic congestion in several ways: The proposed CEQA Guidelines amendments clarify that local safety impacts are appropriate for CEQA analysis. This would appear to be partly in response to concerns from Caltrans about the dangers of queuing at freeway onramps and offramps. However, traffic safety has not traditionally been subject to CEQA analysis. OPR said that the actual environmental impacts of traffic congestion � including noise and air quality � should continue to be analyzed under CEQA. However, mitigation for these impacts should be crafted to solve the specific noise and air quality problems, not traffic congestion problems. OPR clarified that local governments would still be free to analyze congestion impacts � just not within the context of CEQA. "Many jurisdictions have level of service standards in their general plans, zoning codes, and fee programs," OPR wrote. "These proposed Guidelines would not affect those uses of levels of service." Local governments, however, can be expected to push back with the idea that a local plan or ordinance will not give them as much leverage over developers as a state law like CEQA. In many cases, cities have traffic impact fees and then impose additional traffic mitigations on top of that as a result of traffic analysis under CEQA. Phase-In Many cities around the state had expressed concern about a sudden switchover from one standard to another. For this reason, OPR proposed the following phase-in: The new standard will not be retroactive: Approved projects will be subject to mitigations extracted under the old standard. The new standard will only apply to areas around transit stops (as defined in state law). Local governments may apply the standard to other areas on an "opt-in" basis at first. The standard will apply statewide as of January 1, 2016.

Fresh from its major Atherton win (see Bill Fulton's writeup at http://www.cp-dr.com/articles/node-3540), the High-Speed Rail Authority won another key ruling July 31 that upheld the validity of its authorization to issue bonds for the project and said the project's preliminary funding plan did not need to be redone. Presiding Justice Vance Raye of the Third District Court of Appeal issued an opinion that started ominously, though it quickly narrowed its scope to something the court could approve: "Substantial legal questions loom in the trial court as to whether the high-speed rail project the California High-Speed Rail Authority... seeks to build is the project approved by the voters in 2008. Substantial financial and environmental questions remain to be answered... But those questions are not before us in these validation and mandamus proceedings." Joined by Justices Ronald Robie and M. Kathleen Butz, Justice Raye wrote that the necessary findings were appropriately made to support issuance of the high-speed rail project bonds under 2008's statewide Proposition 1A, and the preliminary funding plan created under 1A had already "served its purpose" of providing guidance to the Legislature -- hence could not be undone nor redone. The 49-page appellate opinion is helpfully thorough with procedural history. Raye's opinion reversed November 2013 rulings by Sacramento Superior Court Judge Michael P. Kenny. Kenny's Superior Court orders had invalidated the bonds and ordered the High-Speed Rail Authority to rescind and redo its preliminary funding plan -- meanwhile preventing issuance of the bonds. Raye found no basis for Kenny's "highly unusual scrutiny of the Finance Committee's determination that it is 'necessary or desirable' to grant the Authority's request to authorize the issuance of bonds." He wrote that Kenny expected too much of the 1A-appointed Finance Committee, whereas Raye found nothing that required the Finance Committee to make factual findings, nor to hold a public hearing. He wrote that it was not the business of the trial judge to decide if the project was "necessary or desirable" because the Finance Committee had "exceptionally broad discretion" to make that decision. In Raye's view, too-close judicial scrutiny of such matters was not only unwarranted but also began to create a separation of powers problem. The appellate opinion offered leeway for the tendency of large public works projects to change after their approval, notably citing a ruling in East Bay Municipal Utility District v. Sindelar (1971), 16 Cal.App.3d 910, that validated a late additional issue of bonds under an approval granted by voters years before for a "water development project" although the construction work was essentially done and the expected 10-year project duration had gone by. As to the preliminary funding plan, Raye's decision found the challenge to it "was too late to have any practical effect," while "it is too early to challenge a yet-to-be approved final funding plan" as further required by Proposition 1A. It found the rail authority had no "clear and present ministerial duty to redo the preliminary funding plan" at a point after the Legislature had already appropriated funds to be raised by the bonds. And it found that Judge Kenny properly rejected a late-raised request to undo the appropriation decision, in part on separation of powers grounds. The LA Times writes up the case and its significance at http://lat.ms/1tRpccu and Streetsblog LA discusses the updated state of high-speed rail funding at http://bit.ly/1v2TY3C. Streetsblog says the decision "has removed the most significant legal impediment" to the high-speed rail project. The online docket is at http://bit.ly/1p74WAL. The case is California High-Speed Rail Authority v. Superior Court , No. C075668 and the decision is at http://www.courts.ca.gov/opinions/documents/C075668.PDF. The appeal followed from two companion cases in Sacramento Superior Court, both titled there as California High-Speed Rail Authority v. Tos , with case numbers 34-2011-00113919 and 34-2013-00140689. Online indices for the cases can still be viewed free at https://services.saccourt.ca.gov/PublicCaseAccess/ but the case documents at trial court level are subject to the Sacramento County Superior Court's new download fees.

California's Fourth Appellate District on Friday struck down a special hotel tax that San Diego hotel operators had willingly imposed on themselves, as members of an unusually defined special district, to raise money for the city's convention center expansion. The court ruled that the tax required a two-thirds citywide popular vote for approval. Under Proposition 13 as broadened in 1996 by Proposition 218, special taxes must be approved by a two-thirds vote of "the qualified electors" of the affected district, also expressed as "the electorate" of the district. A detailed opinion by Justice Cynthia Aaron, joined by Justices Judith McConnell and Terry O'Rourke, found the City of San Diego did not get past that requirement when it enacted an ordinance in November 2011 to define a special "electorate" by reference to a special Convention Center Facilities District (CCFD). Under the ordinance, the special district consisted of hotel properties throughout the city; its voters were described as being the owners and lessees of properties with hotels on them. The San Diego Union-Tribune , reporting on the decision, said hotel operators had "eagerly embraced" the tax in hopes that the convention center expansion would increase overall hotel stays, amid concern that the annual San Diego Comic-Con was outgrowing its venue. See http://bit.ly/1uhsEdG. Aaron's opinion found that both Proposition 13 and the city charter required special taxes to be approved by two-thirds of the "qualified electors," who, she wrote, are the same as the registered voters for the geographic area affected -- i.e., in this case, the whole city. She separately ruled that the subset of landowners and lessees did not "comprise a proper 'electorate'," citing in part to Greene v. Marin County Flood Control and Water Conservation Dist. (2010) 49 Cal.4th 277, 297 for the rule that property qualifications are not permitted in elections on special taxes. Aaron cited Neilson v. City of California City (2005), 133 Cal.App.4th 1296, for the rule that "qualified electors" are registered voters under Proposition 13. She additionally followed Rider v. County of San Diego (1991) 1 Cal.4th 1, which blocked a prior San Diego attempt to raise money for public works -- at that time, for "justice facilities" -- by inviting city voters to approve a supplemental sales tax by a majority vote. The Rider court found a two-thirds vote was needed instead. The new San Diego CCFD ordinance had borrowed language and approaches from the Mello-Roos Act, which does allow a vote of landowners to approve taxes for community facilities in districts that do not affect residential property; San Diego's ordinance described hotel use as other than residential. But the opinion said the Legislature's relevant interpretation of Proposition 13 dates from 1979 and trumps the 1986 amendment to the Mello-Roos Act that the city relied on. Aaron wrote that the Legislature, in enacting Mello-Roos, showed no sign of having considered who were "qualified electors" in the context of Proposition 13. She wrote further that, in any case, Proposition 13's careful anti-loophole provisions, at article XIII A, § 4, requires a two-thirds vote of the actual registered voters, and " statute cannot trump the Constitution". Further, the court found it unfair that hotel landowners or lessees would be viewed as the only parties burdened by the tax and hence entitled to control its use, because guests of hotels would be affected too. San Diego activist attorney Cory Briggs represented one of the challengers, San Diegans for Open Government, which at https://www.facebook.com/sandiegansforopengovernment/info states support for "responsible and equitable environmental development" and government transparency. Briggs called the ruling "a huge victory for the taxpayers and the voters" in comments reported by the KPBS news station on August 1. The station quoted Mayor Kevin Faulconer as highlighting economic advantages of the Convention Center expansion that the tax was meant to fund, while former mayor Jerry Sanders, now with the Chamber of Commerce, called it "a great loss for our city." KPBS quoted a spokesman for the City Attorney's office, Michael Giorgino, as saying, "As we stated in the 2012 briefing...the most reliable way to impose this tax is to place it on the general ballot... Two and a half years later, it still is." With this, KPBS linked to a document dated February 1, 2012 on the San Diego City Attorney's site at http://www.sandiego.gov/cityattorney/pdf/2012/120201boundaries.pdf saying that creation of the CCFD "borrows, in part, from a similar structure used by the City of San Jose in 2010 to finance its convention center project," and that "Lawyers within our office have differing opinions" on the plan's legality. It looked toward the city-filed validation action that was the underlying case in last week's decision. As of the KPBS report, it was not clear if the city would appeal to the state Supreme Court. See http://bit.ly/1qOniUV. The case is City of San Diego v. Shapiro , No. D063997, at http://www.courts.ca.gov/opinions/documents/D063997.PDF. (In a separate matter, the City Attorney's office on July 10, announced it had defeated an effort by Briggs to enjoin the use of "over $1 million raised by 18 San Diego Business Improvement Districts" for events and street amenities. See http://www.sandiego.gov/cityattorney/pdf/news/2014/nr140710.pdf.)

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

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

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

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

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

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

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