The U.S. Fish & Wildlife Service cannot ignore the one-year deadline to decide on a petition for protecting a species under the Endangered Species Act, the Ninth U.S. Circuit Court of Appeals has ruled. The court said the agency's practice of taking many years to decide on petitions for endangered species listings violated the law. Under the Endangered Species Act (ESA), citizens can present petitions to the Interior Department (the Fish & Wildlife Service's parent agency) asking that a plant or animal receive protected status. The federal regulators then have 90 days "to the maximum extent practicable" to make an initial determination on whether a petition presents enough information to deserve further study. If the initial determination is positive, the agency has 12 months from the date of the petition filing to decide whether a listing of the species under the ESA is warranted. The Fish & Wildlife Service has used the "maximum extent practicable" language as a loophole to go the beyond the 90-day deadline regularly. In fact, the agency can take years to make the initial determination. "However, if that determination is positive, the Service is already in violation of the twelve-month deadline for the final determination," Judge Johnnie Rawlinson wrote for the three-judge appellate panel. "That is exactly what happened in this case." Starting in 1995, the environmental groups in this case presented petitions for four species: the Spalding's catchfly, the southern California population of the mountain yellow-legged frog, the Great Basin redband trout, and the yellow-billed cuckoo. The Fish & Wildlife Service said prioritizing under a tight budget forced the agency to delay decisions on the petitions (see CP&DR Environment Watch, November 2001), so the environmental groups sued to force action. In what appeared to be a conflicting decision, Oregon District Court Judge Garr King ruled that the Endangered Species Act gave the Fish & Wildlife Service discretion to make an initial finding after the 12-month deadline for issuing a final warranted/not warranted decision on listing. However, Judge King also refused to let the agency go beyond the 12-month deadline for making the actual warranted/not warranted decision. King said the court did not have discretion to extend the permitted time. Both the environmental groups and the federal government appealed to the Ninth Circuit, which then ruled squarely for the environmentalists. "Under the Service's interpretation, it has 90 days ‘to the maximum extent practicable' to make the initial listing determination … but if it is not practicable to complete the determination within 90 days, the finding may be delayed indefinitely. We disagree with the Service's interpretation," Rawlinson wrote. That interpretation would render the 12-month deadline for a final decision inoperative, the court ruled. Rawlinson pointed to the legislative history as evidence that Congress wanted quick decisions on endangered species petitions. "While the Service asks us to embrace an interpretation of the ESA in which listings could admittedly take years, it is apparent that Congress passed the 1982 amendments for the very purpose of curtailing the process," Rawlinson wrote. The Ninth Circuit rejected a number of arguments presented by the Fish & Wildlife Service. The agency argued that the environmental groups lacked standing to bring the lawsuit and that, because the agency has since decided on the petitions in question, the lawsuit was moot. But the court ruled the groups could pursue the lawsuit. "Appellants' desire to use, observe, and study the stated plant and animal species is undeniably a cognizable interest for purpose of standing," Rawlinson wrote. Plus, the Fish & Wildlife Service's failure to act threatened the groups' interests. Neither was the case moot, the court held. The same groups have battled with the agency before on this issue, plus " hey have pending petitions, and the Service continues to interpret the statutory provisions at issue to allow it to delay action indefinitely." The appellate court also rejected the Fish & Wildlife Service's argument that the lower court could have allowed the agency to go beyond the 12-month deadline for final action. The lower court's decision was necessary to carry out the intent of Congress, the Ninth Circuit ruled. "The court had no discretion to consider the Service's stated priorities," Rawlinson wrote. The Case: Biodiversity Legal Foundation v. Badgley, Nos. 00-35076, 00-35089, 02 C.D.O.S. 2553, 2002 DJDAR 3129. Filed March 21, 2002. The Lawyers: For the foundation: Stephanie Parent, Pacific Northwest Environmental Advocacy Center, (503) 768-6707. For the Fish & Wildlife Service: M. Alice Thurston, Department of Justice, (202) 514-2000.

Local regulation of religious land uses has become the latest battlefield in California development. There are at least seven lawsuits pending over government regulation of church development, proposed private schools, and the use of facilities by religious ministries. Lawsuits have been filed against the cities of Concord, Cypress, El Cajon, Los Angeles and Morgan Hill, and against Alameda County and the California Coastal Commission. Additional lawsuits appear likely in Sierra Madre and Huntington Beach. "There are certainly more cases in California than anywhere else," said Roman Storzer, director of litigation for The Becket Fund for Religious Liberty based in Washington, D.C. "They regulate such uses to a greater extent than other states." The Religious Land Use and Institutionalized Persons Act (RLUIPA), approved unanimously by Congress in 2000, provides the basis for most litigation. The law, which many local government leaders and planners opposed, appears to give religious institutions the upper hand by prohibiting most regulation that is a "substantial burden" to religious freedom. Courts have not yet defined "substantial burden" and there are questions about how much evidence in the record is needed to deny religious land uses, said Vivian Kahn, an Oakland-based planning consultant and former American Planning Association (APA) board member. The federal law has had a chilling effect on planners, according to Kahn. "We see this as another federal pre-emption of local land use decision-making," she said. A long history While the controversy has flared during recent years, arguments regarding restraint of religion are very old, said Joseph DiMento, an urban planning and law professor at University of California, Irvine. Government has long regulated the secondary effects of religious land uses, such as traffic, glare and noise, he said. However, lawmakers and courts have begun constraining the ability of government to regulate secondary impacts, he said, pointing to a Massachusetts law that precludes any restriction on religious institutions. DiMento and others favor a content-neutral approach. "If you are treating the institution the same way you are treating others, it should be on the institution's shoulders to prove that it is being harmed," he said. The questions are complicated by the many manifestations of religion in the United States, and by the increased number of "mega-churches" that draw thousands of worshippers, DiMento added. The debate gained new life in 1997 when the U.S. Supreme Court, in City of Boerne v. Flores, 521 U.S. 507, struck down the Religious Freedom Restoration Act of 1993 as an unconstitutional limit on state and local government authority. Congress responded to that decision by approving RLUIPA, which is similar to the stricken statute. The new law prohibits government regulation that imposes a substantial burden on the exercise of religion unless the government proves the restriction is for a "compelling governmental interest" and it is the least restrictive means of furthering that interest. James Kushner, a visiting professor at University of Southern California law school who is helping update the six-volume California Environmental Law and Land Use Practice, said what RLUIPA requires of government regulators is uncertain at this point. There is little case law, and law review articles have not been helpful, he said. "I think that it's a cloud over what local government is permitted to do," Kushner said. One of the first RLUIPA cases decided so far in California concerned San Jose Christian College's proposal to convert a former hospital to a college campus in Morgan Hill. In 1999, Catholic Healthcare West (CHW) closed the 60-bed St. Louise Hospital and adjoining medical offices, shifting much of the staff to a CHW hospital in Gilroy. CHW put the 30-acre property on the market with the restriction that the site could not be used for medical purposes. San Jose Christian College proposed converting the hospital to a campus. However, the site is zoned for a hospital and city officials have been working with a new healthcare foundation to reopen the facility. In 2001 the City Council denied the college's rezoning application. "While this was the only site for a hospital, we allow churches and schools in almost any other zoning district," said Jim Rowe, Morgan Hill planning manager. "There were other sites available to San Jose Christian College." The college sued, but federal District Court Judge Ronald Whyte ruled that the college had not proven the City Council decision was a substantial burden. " Moreover," Whyte wrote, "RLUIPA does not grant religious institutions immunity from land use regulations." Brad Dacus, president of Pacific Justice Institute, which represented the college, said the city's decision did represent a substantial burden because the college has had to turn away students and reduce its ministries for lack of larger facilities. He is appealing the decision. The Morgan Hill situation is not uncommon: A church that wants to build facilities or use existing buildings is denied a variance, use permit or rezoning. More unusual is the case of the Cottonwood Christian Center, which is battling the Cypress redevelopment agency over a prime 18-acre site the church owns. The city has begun eminent domain proceedings to acquire the property for retail development. But the church, which sued earlier, wants to build a 4,700-seat sanctuary and support facilities. Different viewpoints Planners say they are simply applying regulations to religious institutions in the same way rules apply to secular developers and landowners. And, planners say, the First Amendment already affords religious institutions a great deal of protection. "I think the government has accommodated religion in every single way the constitution permits, and then some," said Kushner. "Yet people keep going to the legislature and demanding even more." Advocates such as Dacus of the Pacific Justice Institute and Storzer of the Becket Fund see the world differently. They argue that government finds ways to single out the activities of religious institutions, so laws such as RLUIPA are needed to ensure religious liberty. Dacus said many cities have not updated their zoning ordinances since RLUIPA became law. An ordinance that requires a church to get a discretionary use permit in every zoning district, for example, conflicts with RLUIPA, he said. "We intend to file many, many more lawsuits against cities and counties in the years ahead," Dacus said. "We'd much rather work constructively with municipalities ahead of time to avoid litigation. We are willing to assist without charge." Dacus and Storzer argue that government can block a religious institution's land use plans only if the project would endanger public health and safety. Economic concerns or speculative development possibilities cannot be a factor, Dacus contended. The APA's Kahn, however, believes planners can use content-neutral regulations to deal with religious land uses. RLUIPA, she said, treats churches like the Americans with Disabilities Act treats disabled people. The government has to provide a compelling reason for what it is doing, she said. "Make sure your ordinance does not treat religious land uses differently from any other uses that have the same impacts," Kahn added. "If you allow lodges and private clubs in a district, but not religious assemblies, you need to change your ordinance." She also said that economic concerns, especially in a redevelopment zone, can provide a legitimate basis for making decisions. A church that is often closed and that generates little foot traffic may not be an appropriate use for a parcel in an area where the city is trying to spur economic growth, she said. The APA wants to find a good RLUIPA test case, added Kahn, who is a member of APA's Amicus Committee. Alameda County's denial of a use permit application from Redwood Christian Schools might provide that case. Last fall, the Alameda County Board of Supervisors rejected the application, which would have allowed construction of a 650-student campus in a lightly developed area near Castro Valley, because the site is outside the voter-approved urban growth boundary. The school has since filed a lawsuit. One further complication in California is a state law that allows religious institutions to exempt themselves from local historic preservation laws. The state Supreme Court upheld the validity of that law in East Bay Asian Local Dev't Corp. v. State of Cal., 24 Cal4th 693 (2000) (see CP&DR Legal Digest, January 2001). Churches, synagogues and other houses of worship can be some of the oldest structures in a community and local governments often regulate structural changes to the historic buildings. Under the East Bay decision, a church could bypass such historic preservation regulation. Contacts: Vivian Kahn, Kahn Mortimer Associates, (510) 482-1031. Jim Rowe, Morgan Hill planning department, (408) 779-7247. James Kushner, USC School of Law, (213) 740-2542. Joseph DiMento, UC Irvine, (949) 824-5102. Brad Dacus, Pacific Justice Institute, (916) 857-6900. Roman Storzer, The Becket Fund for Religious Liberty, (202) 955-0095. Becket Fund website: www.becketfund.org

Not often does one developer slug it out with another developer at the ballot box and in a courtroom. But that is the case in El Segundo, where Kilroy Realty is trying to block Thomas Properties Group from developing 2.175 million square feet of office and retail space on the site for a former aerospace factory near Los Angeles International Airport (LAX). Kilroy, whose corporate headquarters is across the street from the proposed development site, provided funding to force a referendum on the city's approval of the El Segundo Corporate Campus. The City Council has scheduled a June 18 special election. Kilroy has also filed a lawsuit against the city, Thomas and the landowner alleging that the project's environmental impact report was inadequate. "This is a developer that is trying to stop development for competitive reasons," Thomas Senior Vice President Tom Ricci said of Kilroy. Kilroy representatives declined to comment and instead referred CP&DR to the group Citizens Against Gridlock in El Segundo (CAGES). Brian Crowley, chairman of CAGES, was a planning commissioner for nine years before a falling out with the City Council last year. Crowley said that the project would add thousands of cars to already congested streets and highways. And, he said, the development agreement between Thomas and the city lacks certainty. "It's a specific plan with no specifics," Crowley charged. "The city has basically abdicated its planning role and said, ‘You give us whatever you want to give us.'" The property has been important to El Segundo for decades. A coastal city of about 17,000 residents just south of LAX, El Segundo flourished after World War II with the growth of the aerospace industry. For about 40 years, Rockwell International ran a large manufacturing plant on the site. When the industry receded during the early 1990s, Rockwell closed the plant and demolished the buildings. Federal Express purchased the land and proposed building a major sorting facility. However the Planning Commission in El Segundo, which has long opposed airport growth, rejected the project. With available land at a premium in Los Angeles's southwest side, a couple other developers took a run at the site, said Paul Garry, El Segundo senior planner. Nothing ever materialized, though, until Thomas came along. In January, the City Council approved an EIR, a general plan amendment, rezoning, a specific plan, a 26-lot subdivision and a development agreement for the Thomas project. The proposal calls for 2.175 million square feet of development, 20% of which must be "non-office." Thomas must provide 1 acre for a new fire station, and agreed to sell 5 acres to the city for $1 million per acre so the city can build soccer fields. Thomas and city officials say the price is about half of market value. The deal also calls for Thomas to spend about $3.8 million on traffic mitigation. Thomas will build an internal street system and provide shuttle buses. The City Council did have to adopt overriding considerations because traffic congestion and air quality impacts cannot be fully mitigated. Thomas has proposed a campus-style project, with common areas, shops, restaurants and services for the estimated 7,000 office workers who could eventually locate there. Thomas has not signed any leases, Ricci conceded, but it has talked to potential tenants. He noted that corporate heavyweights such as Boeing, Northrop Grumman, Raytheon, Direct TV and Computer Associates already have offices in the immediate vicinity and that the El Segundo Corporate Campus would provide space for expansion or relocation. El Segundo leaders are counting on the development to bring jobs and revenue to town. A fiscal impact analysis by Sedway Group found the project at buildout would increase city revenues by about $2.8 million, while the city would spend only about half that amount serving the site. City officials insisted on a retail and hotel component for the project to generate money for the city, and so that traffic gets spread out before and after the morning and afternoon peaks. The project will generate about 21,000 vehicle trips per day, according to the EIR. Ricci said some intersections in the area are already at capacity, and the only way to avoid a significant impact would be to reduce the size of the project by 95%. He noted that existing ramps from the 105 freeway serve the site, and that a Greenline rail station is nearby. "We're always concerned about traffic in El Segundo," said Mayor Mike Gordon, who voted for the project. "We're a pass-through community on the way to the airport and Los Angeles." Gordon said he is satisfied with the project's traffic mitigations. Plus, he said, the land for soccer fields and a fire station is important. But Crowley, of CAGES, said city officials are trading gridlock for minimal benefits. "The city is dangling the prospect of some new park space and they are totally ignoring the rest of the project," Crowley said. Plus, he said, the park would be more than half a mile from the nearest residence and surrounded by heavily traveled roads. Crowley said the site should be developed with high-value facilities that employ few people, such as telecommunications switching stations or large movie production facilities. Such uses would generate revenue for the city but place fewer cars on the road, he said. Crowley also complained that the development agreement allows Thomas to build half the project before including any of the desired retail and service establishments. Moreover, with the 26-parcel subdivision, the city could end up dealing with many different builders, he said. Ricci, however, said Thomas is committed to the site. And the project description in the EIR shows development of restaurants, retail shops, a health club and a day care center occurring throughout the four-phase project, although the hotel would come during the second half of development. It appears both sides will pour money into the campaign leading up to the June 18 election. "We are running a full-on political campaign," Ricci said. "This is an all-or-nothing vote on June 18th. If we lose that election … Kilroy will have driven the proverbial stake through the heart of redevelopment on the east side of Sepulveda Boulevard." Added Mayor Gordon, "From our standpoint, this is about Kilroy Realty Corporation not wanting to compete." But Crowley said a vote against the project will not kill redevelopment. Thomas could put together a new proposal that better serves the city, he said. Contacts: Brian Crowley, Citizens Against Gridlock in El Segundo, (310) 813-9062. Paul Garry, El Segundo planning department, (310) 524-2342. Tom Ricci, Thomas Properties Group, (213) 613-1900. Mike Gordon, El Segundo mayor, (310) 615-2313. Project website: www.elsegundocorporatecampus.com

One of the cardinal rules of ballot-box zoning in California is that ballot measures beget ballot measures. That is, once the concept of making land-use decisions gets embedded in the local political culture, there is no getting rid of it — it only burrows deeper and deeper into the political landscape. That entrenchment is partly because some ballot-box zoning actually requires voter approval for subsequent changes, and it's partly because, over time, people come to expect that they -- and not their elected officials -- are the ones who set land use policy. Nowhere has the ballot-box zoning phenomenon played itself out so intensely as in Ventura County. The people in this affluent county north and west of Los Angeles — home to both high-tech companies and low-tech agriculture -- have been making land-use policy on election day since at least 1980, when Thousand Oaks voters first imposed an annual restriction on residential building permits. Most recently, Ventura County set the pace for the state with the passage of the Save Open space and Agricultural Resources (SOAR) initiatives, which created a set of urban growth boundaries for virtually the entire county that can be altered only by voter approval. This fall, Ventura County will again lead the state into a new phase of ballot-box zoning with a frenzied but fragmented battle both to alter and to protect the existing land use policies on a city-by-city basis. It appears no fewer than four measures will appear on city ballots in Ventura County. Each one of them is interesting individually, but added together they appear to represent an entire "western front" in the ballot-box zoning war. In the cities of Simi Valley and Santa Paula, ballot measures will seek to alter existing SOAR boundaries. But in Ventura and Ojai, voters will be asked to deal with development issues in areas designated for growth. This highlights a whole new aspect of ballot-box zoning — requiring voters not only to approve projects outside urban boundaries, but also to approve projects inside the boundaries. The two SOAR amendments are likely to be major battles in and of themselves. In Simi Valley, pro-SOAR activists will attempt to shrink the existing growth boundary so that five different pieces of property, including at least two that are prime for development, will be placed outside the growth boundary. Among the parcels that would be removed are the 2,880-acre Alamos Canyon, which landowner Unocal hopes to develop with homes and business parks, and the 239-acre Marr Ranch, which has a pending development proposal for more than 200 homes. City officials are angry that SOAR activists have gone back to the ballot to remove these parcels from the inventory of developable sites. But the SOAR leaders say they were pressed for time during the original campaign in 1998 and compromised to place these parcels inside the boundary even though they did not want to. Meanwhile, in Santa Paula, landowners will attempt to expand the SOAR boundary to include a large hillside property — the 5,400 Adams Canyon area — on which Pinnacle Homes wants to build more than 2,000 housing units as well as commercial development. The property had previously been included in the city's general plan, but was removed by the voters when they passed Santa Paula's original SOAR boundary in November 2000. Santa Paula is already deeply split over a U.S. Department of Justice voting rights lawsuit that may cause the creation of City Council districts to ensure the town's majority Latino population receives representation. Santa Paula appears to be fissuring further over the Adams Canyon project. Some citizen activists want more high-end hillside homes in this generally low-income farm town; others want to focus on revitalization in the existing community. In Ventura, voters will decide whether to permit a 1,300-unit project on about 5,000 acres to move forward. But to make things more confusing, the land in question is already inside the SOAR boundary, and the voters will not be deciding whether to expand or shrink that boundary. Rather, they will be voting on whether to extend water and sewer service into a hillside area already inside the SOAR boundary — a requirement imposed by Ventura voters last November. Though inside the city's sphere of influence, the land owned by Lloyd Properties was not included in the original 1995 SOAR initiative for Ventura because that measure dealt only with agricultural land. Although it is undeveloped and zoned by the county for open space, the property remains designated in the city's general plan for hillside development that could — in theory, at least — accommodate up to 8,000 housing units. Finally, in the tiny and quaint town of Ojai, voters will decide whether to require subsequent voter approval on virtually every residential project in town. Ojai is one of only two cities in Ventura County without a SOAR boundary, largely because the conventional thinking was that the city's politics are already so slow-growth that additional restrictions were not necessary. The proposed initiative would require voter approval for projects that create any increase in traffic that is not mitigated by the project approval process. Proposed by a local environmental group, Citizens to Preserve the Ojai, the initiative would seek not only to require full mitigation of traffic problems, but also to require voter approval for the projects and for the mitigation. The initiative has raised the ire of city officials -- so much so that they have sued to try to knock it off the ballot, which is a very difficult task. They argue that the measure will create internal inconsistencies in the general plan. The citizen group and the city have been tangling recently over the city's housing element. There is a certain way in which the rest of the state might simply view Ventura County as kooky for ballot-box zoning. After all, most other parts of the state do not use ballot-box zoning, and the passage of Ventura County's SOAR initiatives did not stimulate the statewide movement that some people predicted. Still, land use ballot measures have become common in coastal urban areas under extreme growth pressure (see , October 2000). The coming four-front war in Ventura County — with different issues being dealt with by different voters — suggests that the future will be more complicated anywhere that ballot-box zoning has taken hold. Every time voters make land-use decisions on the ballot, we can be sure that more ballot measures will appear in the future.

In mid-April, The first freight train emerged from an underground trench a few miles south of downtown Los Angeles and headed along a separate right-of-way toward the enormous rail yards east of downtown Los Angeles. This is the kind of event that would seem to be a major breakthrough of the 19th Century, not the 21st. But the switch giving the freight train the green light was pulled by U.S. Transportation Secretary Norm Mineta, California Gov. Gray Davis, and Los Angeles Mayor James Hahn in front of a crowd of more than 1,000 people. And, in general, the political leaders heralded the opening of the Alameda Corridor with the kind of rhetoric ordinarily reserved for space launchings — or at least freeway openings. Davis compared it to the opening of the transcontinental railroad. Rep. David Dreier called it "the silk road of the 21st Century." This rhetoric might be a bit extreme, but you cannot deny that the Alameda Corridor is worth talking about as a piece of economic infrastructure. It is a good example of the most important kind of economic development project our metropolitan areas will see in the 21st century: the missing piece. In scale, cost, and complexity, the Alameda Corridor rivals the most ambitious infrastructure projects of its time, including the Central Artery highway relocation effort in Boston. It's a $2.2 billion project that required the combined efforts of dozens of federal, state, and local agencies, as well as two major railroads, Burlington Northern Santa Fe and Union Pacific. It took more than 20 years to bring the project to fruition, five years for construction alone. Underneath all the complexity, however, the Alameda Corridor is a very simple idea. It is an enormous trench -- 50 feet wide, 33 feet deep, and 10 miles long — combined with a series of bridges, overpasses, and underpasses at either end to create a separate, 20-mile-long right-of-way for freight trains. Its purpose is also simple. The corridor is designed to slice through one of the most crowded and congested parts of Los Angeles and remove one of the biggest roadblocks to the efficient movement of goods in the United States: the gap between the containerized ports in the Long Beach area and the transcontinental railroad system that begins in downtown Los Angeles. The Alameda Corridor will double train travel speeds through the corridor and cut shipment time from three or four hours down to 30 minutes. There is little question that the national economy will benefit from the corridor project — as will the ports of Long Beach and Los Angeles, which together make up the largest port in the West. For years, however, a debate raged over whether the other communities along the corridor would be winners or losers. The corridor passes through some of the most densely populated communities in the Western United States -- mostly Latino and African-American working-class suburbs like Huntington Park, South Gate, Lynwood, and Compton. These communities have some of the lowest incomes, educational levels, and home ownership rates in the West. The presence of the rail lines helped to create southern Los Angeles County as an industrial powerhouse, but it has also put these communities in the path of pollution, noise, and danger. Throughout the corridor's planning, these communities feared that they would bear the brunt of more train traffic and yet miss out on the resulting jobs. There are still outposts of community opposition to the corridor, but they are rare. Speaking in April on the radio program "Which Way L.A.," Carlos Porras, executive director of Communities for a Better Environment, complained that "these communities have been scapegoated again in a tradeoff for regional benefits that compromise localized impacts." But he was hard-pressed to provide specifics. And even the most critical elected officials along the corridor signed onto it in the end. By and large, political opposition was blunted by two things: a program of local hiring that politicians have described as aggressive and the creation of the 10-mile trench. At the April grand opening, the elected officials repeatedly boasted of the following job numbers: About 1,300 local residents were employed in corridor construction. Six hundred of these workers entered union apprenticeship programs. And about 400 young people worked on the project as part of the California Conservation Corps. For a $2.2 billion project, these numbers are tiny. And many of the jobs were temporary; indeed, most of the permanent jobs are located not along the corridor but at the ports themselves, where the amount of cargo is expected to triple during the next 20 years. Nevertheless, the local hiring effort gave politicians along the corridor something to praise. For the communities, the trench is a bigger deal. Boxing in the trains and pushing them downward transformed the corridor into the railroad equivalent of a flood-control project. The communities are protected from many of the adverse effects of trains rolling through their neighborhoods. For most of its length, the trench is not pretty. In keeping with the flood-control theme, it looks a lot like the channelized Los Angeles River — a large, depressed box of concrete along Alameda Street, fenced off so no one can enter it. That does not seem to bother local politicians, for whom a trench is far preferable to an endless series of freight trains snaking over the surface of their towns. Like most American cities today, Los Angeles is no longer a freewheeling place with plenty of room to grow. Like the trains along the Alameda Corridor, it is boxed in. In Los Angeles — as in Boston, New York, Chicago, and elsewhere — the future of economic development lies not in building brand-new things. Rather, it lies in filling the gaps and making existing systems more efficient. As the Alameda Corridor proves, the missing piece does not have to be complicated or beautiful. It just has to work.

An appellate court has invalidated amendments to the San Bernardino County general plan that gave the county greater authority over development within cities' spheres of influences. The Fourth District Court of Appeal ruled that the county's failure to prepare an environmental impact report on the amendments violated the California Environmental Quality Act. The court ruled that the county's project description improperly downplayed the significance of the amendments, and that the cities of Redlands and Rancho Cucamonga presented "substantial evidence of a fair argument that the amendments may have a significant effect on the environment" — one of the standard tests for when to prepare an EIR. The decision is a victory for advocates of coordinated planning, said Redlands City Attorney Daniel McHugh. The county's previous general plan called for the county to work with cities on land use planning for unincorporated territory within cities' spheres of influence. Redlands backed that plan. But, said McHugh, "The new standards do not bear any relationship with the city's standards." The county has asked the state Supreme Court to review the case or to depublish the decision. A county attorney did not return a request for comment. In 1999, the San Bernardino County Board of Supervisors adopted a general plan amendment "to clarify the county's land use planning authority and development approval discretion in sphere of influence areas." Cities objected to the amendment (see CP&DR Local Watch, August 1999), and Rancho Cucamonga and Redlands filed lawsuits challenging the county's environmental review. San Bernardino County Superior Court Judge James Edwards ruled for the cities, finding that the county had substantially changed its land use policies without properly describing the project or gathering facts needed for an adequate environmental analysis. Judge Edwards also ruled that the cities presented enough evidence that the county should have prepared an EIR. The county appealed the decision, but a unanimous three-judge panel of the Fourth District, Division Two, upheld the decision. In its appeal, the county — which adopted a negative declaration for the general plan amendment — argued that Judge Edwards wrongly decided that the project description was lacking. The county contended that the amendment only clarified the county's authority. But the Fourth District said Edwards was correct. The amendment replaced a policy that required the county to incorporate cities' land use policies with discretionary language that called for the county only to "consider" cities' policies. The county also eliminated a requirement that all projects inside cities' spheres other than single-family residences get a use permit from the county. "As argued by the cities," Justice Barton Gaut wrote, "the amendments were more than mere clarifications of existing general plan provisions. By adopting the amendments, the Board made substantive changes to the County's policies and procedures in making land use and development decisions involving unincorporated territory within a city's sphere of influence. In essence the amendments eliminated the requirement that the County give substantial weight to and even implement the standards provided in an affected city's general plan. "In fact," Gaut continued, "the Board adopted the amendments in response to Redlands's successful litigation against the county involving a conflict between the County's general plan and Redlands's growth control measures and development standards. Under the new amendments, where a conflict between city and county standards exist, the County has granted itself discretion to override city standards in making decisions concerning land within that city's sphere of influence. It appears that what the County failed to do in court, it attempted to accomplish through quasi-legislative proceedings." The court held that the county ignored the potential impact of future development that would result from the general plan amendment and that the county provided no evidence of how such a policy change would not affect the environment. The court also rejected the county's argument that the cities did not provide substantial evidence to make a fair argument for an EIR. The county characterized the cities' evidence as argument, speculation and nonexpert opinion. But the court found that the cities "provided lengthy evaluations of the potential effects of the amendments." Rancho Cucamonga, for example, noted that the county's regulations for grading on hillsides were looser than its own, and that the county did not require as much parkland as the city for new development. "Ironically, the County complains concerned the cities' lack of evidence, when it initially set the stage by failing to gather facts and evidence in conducting its initial study of amendments' potential environmental effects," Gaut wrote. "The County's conclusory evaluation of the amendments fails to support its decision to adopt a negative declaration." Finally, the court rejected the county's argument that Judge Edward's injunction against the county to prohibit adoption of the general plan amendment or similar amendments was overly broad. The order simply ensured that the county does not circumvent CEQA again, the appellate court ruled. The Cases: City of Redlands v. County of San Bernardino; City of Rancho Cucamonga v. County of San Bernardino, No. E028515, 02 C.D.O.S. 1691, 2002 DJDAR 2073. Filed January 29, 2002. Ordered published February 22, 2002. The Lawyers: For Redlands: Daniel McHugh, city attorney, (909) 798-7595. For Rancho Cucamonga: James Markman, Richards, Watson & Gershon, (714) 990-0901. For the county: Robin Cochran, deputy county counsel, (909) 387-5455.

These are both the best of times and worst of times for California's mining industry. The Interior Department has lifted some Clinton-era restrictions for hardrock mining on federal land. However, the State Mining & Geology Board is considering new regulations for implementing the Surfacing Mining and Reclamation Act (SMARA) that miners say will be burdensome. The regulatory issues are important in California, which produces more "non fuel" minerals than any other state. California's 1,000 active mines produced $3.38 billion worth of minerals, including about $1 billion worth of sand and gravel, in 2000, according to the state Division of Mines and Geology. The state board is scheduled to consider adopting the administrative regulations May 9. Most changes are not controversial. But miners question amendments that would redefine when a new reclamation plan is needed, ending the practice of using multiple reclamation plans for different phases of the same mine. Surface mines often evolve over time, growing beyond the bounds of original permits. Miners and geologists accept the slow and difficult-to-predict expansion as the nature of the resource extraction business. The state board has long required a new reclamation plan when a miner proposes a "substantial deviation" from an approved mining plan. The proposed regulation would require a new reclamation plan when "the surface mining operation is appreciably changed." Denise Jones, executive director of the California Mining Association, said this amendment could open up many more operations to new scrutiny, even if expansion is not contemplated. Furthermore, the requirement for one reclamation plan means that miners will have to bring an entire site up to present-day standards, even if they posses a valid reclamation plan for other parts of the mine or quarry. "The significant question we have is, when is an approval an approval?" Jones said. Douglas Sprague, manager of reclamation for Vulcan Materials Co. Western Division, said moving an access road could be considered an appreciable change that would trigger a long review process. And, he noted, reclamation plans are subject to California Environmental Quality Act review. "It reopens everything," Sprague said. "As far as we can see, it's an unending process because in the mining industry, you are always changing things, particularly when it comes to reclamation, which is an evolving science." Mines have multiple reclamation plans for a variety of reasons, said Sprague: They operate in multiple jurisdiction; different landowners own different parts of the site; part of the mine is in a stream and part is a pit. Forcing all those instances into one plan that would have to be revised anytime there is an appreciable change will discourage investment in aggregate mining, Sprague warned. However, Robert Joehnck, Department of Conservation staff counsel, said the industry is making too much of the amendments. "We think it's a clarification of the existing law" and will affect the minority of operators, he said. Joehnck declined to say how a CEQA review would fit into the process of revising a reclamation plan. He said the more important issue could be application of new reclamation standards — such as updated rules regarding revegetation — to all portions of a mine site. Jim Ellis, a planning division chief for Kern County, said his agency has always treated expansions as separate from an existing mine. The proposed change to one reclamation plan would probably make administration simpler, he said. But he questioned whether the amendments were fair to miners with valid permits. In earlier written comments to the state board, Kern County planners questioned the proposal for determining a "substantial deviation" that would trigger the need for updating a reclamation plan. "Conceivably, no deviation may be able to meet the test of the criteria and all plan amendments would therefore be substantial deviations," the county testified. While the industry is nervous about state action, it was pleased when the Bureau of Land Management rolled back hardrock mining rules that had been adopted less than one year earlier. The decision took effect December 31, 2001. Environmental groups condemned it and filed suit. What the changes mean for a controversial gold mine proposed in eastern Imperial County is unclear. Federal officials first adopted hardrock mining regulations in 1980, but environmentalists complained that they did not address present-day open pit mining practices. The BLM began reviewing the regulations in 1991 but never adopted any changes. In 1997, BLM restarted the rulemaking process, which then lasted four years. The rules that finally took effect in the last days of the Clinton administration set in place stricter environmental standards regarding acid mine drainage and other impacts of open pit mining, required bonds to clean up and reclaim a mine site prior to the start of mining, allowed the BLM to fine violators, and gave the BLM authority to deny a mining permit if the operation would cause "substantial irreparable harm" to environmental, scientific or cultural resources. Environmentalists cheered the regulations, but miners hated them and tried to block them in court. Interior Secretary Gail Norton suspended the regulations only weeks after taking office in 2001. After a review, the BLM repealed the "substantial irreparable harm" provision and the ability to impose fines. It retained some — but far from all — of the new environmental standards, and it kept the bonding requirement. The latest changes were a setback for environmentalists, said Lexi Schultz, legislative director for the Washington, D.C.-based Mineral Policy Center. The regulations do not take full advantage of the research that is available on how mines affect water, and plants and animals, she said. Moreover, the relaxed environmental standards mean the bonding requirements are not as significant, she said. But BLM spokesman Lawrence Finfer said the agency kept regulations regarding acid mine drainage, retained new regulations for small mines that had been exempt from most rules, and retained the full-cost bonding mandate. "It's hard to argue that that's a defeat for the environment," Finfer said. "Bonding is central because it provides an incentive to do the job right, and it protects the taxpayers. … That's a big change from what had previously existed." The agency dropped the provision allowing federal land managers to reject a permit because of the potential for substantial irreparable harm because of legal and policy concerns, Finfer said. But, he added, "We already have authority to, if not deny permits, send applicants back to the drawing board." In January 2001, only days before Clinton left office, then-Interior Secretary Bruce Babbitt did deny an application from Glamis Gold Ltd. for a 1,500-acre open pit mine in eastern Imperial County. Babbitt determined that the mine would destroy numerous Quechan Tribe cultural sites. And Glamis proposed leaving behind an 880-foot-deep pit and 280-foot-tall tailings pile. Interestingly, Babbitt based his decision on the 1980 regulations. However, Norton withdrew Babbitt's decision in November, and in February the BLM began reviewing the validity of Glamis's mineral rights. Glamis estimates it can pull 3 million ounces of gold from the site. "It looks like the new administration wants to reach back in time and pretend they were the decision-maker," said Courtney Coyle, an attorney for the Quechan Tribe. "It raises the questions of when are the decisions final." In an April letter to Norton, State Attorney General Bill Lockyer sided with the tribe and environmentalists, saying the BLM has a duty to protect lands within the California Desert Conservation Area from "undue impairment." U.S. Senators Dianne Feinstein and Barbara Boxer, and 29 House representatives, have also protested Norton's decision. Contacts: Douglas Sprague, Vulcan Materials, (323) 258-2777. Denise Jones, California Mining Association, (916) 447-1977. Robert Joehnck, Department of Conservation, (916) 323-6733. Lexi Schultz, Mineral Policy Center, (202) 887-1872. Courtney Coyle, attorney for Quechan Tribe, (858) 454-8687. Glamis Gold Ltd. website: www.glamis.com

Worried about water reliability and feeling neglected, Bay Area water agencies that get water from San Francisco's Hetch Hetchy system are taking the situation into their own hands. The agencies are working with state lawmakers on various approaches that would force San Francisco to repair and update the system, and would even let the agencies raise the capital improvement money themselves. San Francisco officials appear to feel threatened and have responded with their own capital improvement plan. City leaders are talking about placing a multi-billion-dollar bond on the November ballot to fund water system projects, or even asking voters to amend the city's charter so that supervisors could approve necessary bonds. Nearly all parties involved agree that the approximately 80-year-old Hetch Hetchy system needs repairs and seismic improvements, in addition to new facilities to meet growing demand. "There is a risk to the whole region that we could be without water after an earthquake or other natural disaster," said Arthur Jensen, general manager of the Bay Area Water Users Association, which represents the 28 water suppliers that rely on San Francisco's system. "We have three major earthquake faults in the Bay Area, and a major earthquake on any one of those faults would result in multiple failures of the water delivery system." Like most large water projects in California, Hetch Hetchy has a long history with a cast of colorful players. The initial fight over damming the Tuolumne River in Yosemite National Park's Hetch Hetchy Valley pitted Sierra Club founder John Muir against Gifford Pinchot, the legendary first chief of the U.S. Forest Service. After years of debate in California and in Washington, D.C., Pinchot and other Roosevelt Progressives won, and Congress approved dam construction in 1913. Hetch Hetchy system engineering and construction took the next two decades, far longer than it took to build the Los Angeles Aqueduct from the eastern Sierra to Los Angeles, or the Mokelumne Aqueduct from the Sierra foothills to the East Bay. The length of the project was partly due to City Engineer Michael M. O'Shaughnessy's insistence that the system be entirely gravity fed, which required a 25-mile-long tunnel through the coastal mountain range. In 1934, the Hetch Hetchy project began delivering water, which is stored in several Bay Area reservoirs. Today, the Hetch Hetchy system provides 85% of San Francisco's water, which supplies 2.4 million people in San Francisco and 26 other cities and water districts in San Mateo, Santa Clara and Alameda counties, plus a private utility and Stanford University. Municipalities and businesses — especially manufacturers of high-tech products — like the Hetch Hetchy water because of its purity. However, San Francisco's record on capital improvements is poor, according to the regional customers. The State Auditor, in a 2000 report, agreed: "The San Francisco Public Utilities Commission has been slow to assess and upgrade its water delivery system so it can survive catastrophes such as earthquakes, floods and fires. It also has been slow to estimate the amount of water it will need to meet future demand and to seek additional sources of water. As a result, the nearly 2.4 million customers in four Bay Area counties who rely on the commission for their drinking water are at greater risk of disruptions and water shortages if an emergency or a drought occurs." The State Auditor said the San Francisco PUC was slow to plan for and complete capital projects. The auditor blamed a lack of staff expertise and frequent turnover of top managers. San Francisco PUC spokeswoman Beverly Hennessey said the agency has been working on a capital improvement plan for two years. The draft plan, which is undergoing public review this month, calls for $2.9 billion in work to upgrade the water delivery system, improve water treatment facilities and increase water storage. (The capital improvement program also calls for $1.7 billion for water and sewer improvements in San Francisco proper.) As of April 1, the PUC had not set a date to consider adopting the plan. Factored into the plan is the need to create system redundancy because of the earthquake threat. Plus, said Hennessey, the system is old and deteriorating. "This is happing all over the county, and we're being very pro-active about it," she said. "We know we have to take some action. … This is the most important thing we are undertaking right now by far, and it's the largest public works project in the city." But the agencies that rely on San Francisco to provide water are not convinced. "We're not sure they are going to have the management expertise, nor the funding," said Jensen, of the Bay Area Water Users Association. "They have never adopted a capital plan." Jensen's organization is working with Assemblyman Lou Papan (D-Millbrae) and state Sen. Jackie Speier (D-San Mateo) on legislation. Papan's AB 1823 would mandate a timetable for San Francisco to complete repairs on the Hetch Hetchy system and would establish a method for state oversight. The bill would also allow San Francisco to voluntarily transfer the regional water system to a new agency. Papan's AB 2058 would let the purchasers of Hetch Hetchy water form that agency. "The structure would be somewhat like the Metropolitan Water Agency in that all the agencies would have representation on the board," Jensen said. This agency could issue its own bonds and could negotiate more effectively with San Francisco, he said. Speier's SB 1870 would allow the agencies that rely on Hetch Hetchy to establish a financing authority that could raise revenue for system improvements. Backers of a new entity say it is critical to address governance issues. Right now, two-thirds of the Hetch Hetchy water users have no say over the system's governing board. San Francisco leaders — who have an ally in Senate President Pro Tem John Burton of San Francisco — are opposed to the bills, saying they are unnecessary because the city is addressing the regional water system. Still, financing remains uncertain. Board of Supervisors President Tom Ammiano has said a bond to fund the entire $4.6 billion capital improvement plan may not get past San Francisco voters, even though water users outside the city would pay nearly two-thirds of the cost. Unlike most California cities, San Francisco's charter requires voters to approve revenue bonds, although there is an exception for water project financing approved by 9 of the 11 San Francisco supervisors. Ammiano has proposed putting a charter amendment on the ballot, but language had not been worked out as of late March. Meanwhile supporters of the Papan and Speier legislation are seizing on San Francisco's lack of definitive action as evidence that state legislation is needed. Contacts: Arthur Jensen, Bay Area Water Users Association, (650) 349-3000. Beverly Hennessey, San Francisco Public Utilities Commission, (415) 554-3155. San Francisco PUC capital improvement plan: http://www.sfwater.org/main.cfm/MSC_ID/6/holdSession/1 State Auditor's report on Hetch Hetchy: http://www.bsa.ca.gov/bsa/pdfs/99124.pdf

Quietly, while no one seemed to be paying much attention, the Central Valley has become one of the smoggiest places in the nation. Kern, Fresno and Tulare counties rank third, fourth and fifth among those counties that exceeded federal ozone standards the most days from 1997 to 1999, according to the American Lung Association's 2001 State of the Air report. While car-crazy Los Angeles is most often associated with oddly orange skies, in truth, Los Angeles's reign as smog king is over. Today, it ranks a mere eighth on the list of America's 25 most ozone-polluted counties. The top two counties are San Bernardino and Riverside, whose western ends are intensely urbanized and industrial. But the next three counties on the list — Kern, Fresno and Tulare — are in a region more commonly associated with cotton and tomatoes than with third-stage alerts and respiratory distress. Cleaning up the valley's air is a tough challenge. Unlike many smoggy metropolitan areas, the ozone and particulate matter (soot and dust) contaminating Central Valley air do not typically emanate from large stationary sources such as factories and power plants. The pollution, instead, is the product of millions of small sources, many of them mobile, such as cars, and farm and construction equipment. Moreover, farming — the top source of valley air pollution — remains unregulated and politically untouchable. Faced with this challenge, air-quality managers and health activists alike have settled on a clean-air strategy that, while guaranteed to be costly, is unlikely to do much in the short term to make the valley's air more breathable: lawsuits. The most recent was filed in March, when the Sacramento Metropolitan Air Quality Management District (SMAQMD) sued the California Air Resources Board (CARB) over its failure to require the more rigorous Smog Check II vehicle emissions tests for cars and trucks in the San Francisco Bay Area. Autos statewide are required to undergo basic idling-engine smog tests every two years, but those in particularly polluted areas are also required to pass a more rigorous test that monitors the vehicle under a variety of engine speeds. The Bay Area is exempt from that program. In its suit, SMAQMD contends that the exemption is unfair and illegal. The federal Environmental Protection Agency (EPA) has designated the six-county Sacramento region a "severe nonattainment" area for ozone under the Clean Air Act. By law, SMAQMD argues, the CARB is required to reduce migrating Bay Area smog because the board concluded in 1993 that wind-blown pollutants contribute significantly to Sacramento's violation of the federal standards. The SMAQMD lawsuit is but the latest domino to fall. In February, the San Joaquin Valley Air District (SJVAD) also sued CARB, seeking a crackdown on smog getting blown into the valley from the Bay Area and the Sacramento region. Like their counterparts in the Sacramento district, SJVAD regulators blame migrating emissions and the Bay Area's Smog Check II exemption for the valley's failure to comply with federal pollution standards. "The Valley Air District is employing every means at its disposal to control emissions originating locally," air pollution control officer David Crow said when announcing the lawsuit. "Ignoring the impact from the Bay Area is no longer an option." Additionally, Assemblyman Dennis Cardoza (D-Merced) has introduced AB 2637, which would impose the Smog Check II system on the Bay Area. However, catching a few thousand Bay Area automobiles that pass existing inspections but might fail the more rigorous Smog Check II program will not significantly affect air pollution in Kern, Fresno and Tulare counties. The SJVAD's lawyer admitted to a New York Times reporter last month that the Bay Area sends only 8 to 11 tons a day of nitrous oxide (NOX) — the primary constituent of ozone formation — into the San Joaquin region, while the valley needs to reduce its total NOX emissions by about 300 tons a day to comply with EPA regulations. But Crow's comment contains a kernel of truth, as revealed by yet another lawsuit over Central Valley smog. In early February, a coalition of environmental and public health groups sued the EPA for approving 34 local air district pollution plans in California. All those plans exempt agricultural operations from having to obtain air pollution permits because state law authorizes the exemption. "Giant farms," the plaintiffs assert, "are the San Joaquin Valley's largest source of air pollution, putting out more smog and soot than any other source, including cars, trucks, oil refineries or power plants." The exemption produces some noteworthy incongruities: diesel engines that power irrigation pumps are not required to meet emission standards; the same engines, if used in oil fields, must meet such standards. California's agricultural lobby has so far managed to fend off efforts to subject farm operations to the same air and water pollution rules applied to other industries, depriving the local air agency of a potent tool in its anti-smog campaign. Besides suing the state, the San Joaquin District is pursuing another paperwork strategy in reaction to its persistent smog problem: It has asked the EPA to change its nonattainment designation from "severe" to "extreme." In a fact sheet on this tactic, the district calls this a "bold step" but notes it could have a downside. "The valley would face the stigma of being the only other region besides the Los Angeles area to be classified as extreme," the fact sheet notes. "This could negatively impact economic development." Whether the step is bold is debatable. The changed status would simply give the district until 2010 to meet federal pollution standards. Its current deadline, which district officials acknowledge they probably cannot meet, is 2005. Missing the deadline could cost the region $2 billion in federal highway funds. As for the other impacts, public health advocates no doubt find it disingenuous, at best, for the district to warn of the negative impacts its smog strategy might have on economic development. A study published March 6 in the Journal of the American Medical Association demonstrated a conclusive link between exposure to fine particulate matter — such as dust blowing off farms and soot emitted by diesel irrigation pumps — and increased risk of death from lung cancer. That report followed one in issued in February by the University of Southern California demonstrating a connection between air pollution and childhood asthma. The California Department of Health Services says that 12,000 people are hospitalized for asthma each year in the San Joaquin Valley. More than 5,000 of them are children. Contacts: Dr. David Pepper, Medical Alliance for Healthy Air: (559) 459-5705. Brian Smith, Earthjustice: (415) 627-6700. California Air Resources Board: (916) 322-2990. San Joaquin Valley Air District: (559) 230-6000. Sacramento Metropolitan Air Quality Management District: (916) 874-4800. American Lung Association State of the Air Report: www.lungusa.org/air2001/

A public agency's proposed water treatment plant is subject to local zoning and building ordinances, the Sixth District Court of Appeal has ruled. The court held that the Government Code exemption to local zoning for "facilities for the production, generation, storage or transmission of water" did not extend to a water treatment plant. "We are unable to discern whether the Legislature actually intended to include a water treatment plant within § 53091's automatic exemption of facilities for the production of water. While we believe that the Legislature intended to include a well within § 53091's automatic exemption, the extension of the exemption to a water treatment facility involves policy considerations that we are unable to conclude that the Legislature resolved," Justice Nathan Mihara wrote for the unanimous three-judge panel. The issue arose in Santa Cruz County, where, in 1992, the county approved a four-lot subdivision. Three years later, Soquel Creek Water District purchased one of the parcels with the intent of drilling a well and building a water treatment plant. In 1997, the three remaining parcels were sold to buyers who now reside in single family residences. The new homeowners opposed the Water District's plan and fought the district on numerous fronts. The homeowners asked the county to declare the four lots illegal because the original subdivision conditions were not met, and to require the Water District to comply with local zoning and building laws. The county denied both requests, so Topsail sued. Santa Cruz County Superior Court Judge Robert Yonts ordered the county to issue "conditional" certificates of compliance for all four parcels conditioned on the homeowners and the Water District forming a property owners association for maintenance of common areas and sewers. Judge Yonts also ordered the county to record a new parcel map referencing the property owners association and restricting covenants. However, Yonts ruled that the Water District was exempt from local building and zoning regulations under Government Code § 53091. Both sides appealed, and the Sixth District overruled Yonts entirely. The appellate court ruled that the challenge to the subdivision was too late because the statute of limitations was 90 days from the time of subdivision approval in 1992. The court then reviewed the exact wording of the exemption statute and City of Lafayette v. East Bay Mun. Utility Dist., (1993) 16 Cal.App.4th 1005, (see CP&DR Legal Digest, August 1993). In that case, the court ruled that a special district's proposal to build a service center in Lafayette had to abide by a city's zoning ordinances because the service center was a support facility not directly related to the storage and transmission of water. The Sixth District panel determined that the Santa Cruz County case was similar. The problem is that the statute does not define "facilities for the production … of water," according to the court. However, other, unrelated, statutes contain specific references to particular types of facilities, which § 53091 does not. "Had the Legislature intended to exempt water treatment plants from zoning ordinances, it was clearly capable of explicitly referring to such plants in § 53091," Justice Mihara wrote. The Case: Topsail Court Homeowners Association v. County of Santa Cruz, No. H022122, 02 C.D.O.S. 874, 2002 DJDAR 1067. Filed January 28, 2002. The Lawyers: For the homeowners: Dale Dawson and Gerald Bowden, Dawson Passafuime & Bowden, (831) 438-1221. For the county: Rahn Garcia, county counsel's office, (831) 454-2040.

Remember the "see-through" office building phenomenon that hit Houston during the mid 1980s and then Los Angeles in the early 1990s? Well, it's back. This time, it is the Bay Area that is afflicted with empty office buildings. For anyone who has followed the economy during the last two years, this is no surprise. But, because we tend to get more sophisticated with land economics as we weather one dip after another, the dynamics have changed a bit. First, it is the would-be tenants who are often holding the bag this time. And, second, developers are already fast at work with planning agencies to restructure empty inventory for the next big surge. Unlike the downturn of the early 1990s that put Southern California's speculative office developers on the ropes, the Bay Area skid is hurting the businesses that hold space leases that they now cannot fill. This difference is because of the technology industry's frantic space grab during the late 1990s. Worried about being closed out of their own home base, computer, telecom, and dot-com companies went on a speculative purchase and long-term lease binge of their own. So this time around, companies not ordinarily in the real estate business are eating the cost of empty office space. Companies have also simply canceled some projects. The most publicized of these was Cisco System's plans for a vast campus at a San Jose site known as the Coyote Valley. Although courts have recently rejected CEQA-related legal challenges on the 6.6 million-square-foot development, Cisco has already folded its tent due to drastically revised space absorption projections. The San Jose Mercury News documented some of the inventory glut last fall. In addition to abandoning Coyote Valley, Cisco Systems is leaving empty 11 buildings in San Jose and Milpitas, Inktomi is not filling two buildings in Foster City (still under construction); and 3Com has decided not to occupy an entire new campus in Santa Clara. And that's just the Peninsula and Silicon Valley. Although not known primarily as a technology sector office location, downtown San Francisco is taking a beating as well. San Francisco's financial industry and the South-of-Market dot-coms were part of the boom market, and downtown San Francisco office space grew tight even though it was among the most expensive in the country. Real estate analysts at Grubb & Ellis reported that the downtown San Francisco's negative net absorption – analyst lingo for vacancy growth – was the worst on record for the third quarter of 2001. Grubb & Ellis predicts a vacancy rise to 25% by June of 2002 — compared with a vacancy rate of only 2% two years earlier. The dampening market has also deeply affected lease rates. According to combined reports, Class A space in downtown SF has slid from nearly $79 per square foot per year for the second quarter of 2000 to $33 at the end of first quarter of 2002. This free fall in rents could be disastrous for landlords because $30 per year is widely considered the break even lease rate for offices in the vicinity of Montgomery Street. Many space owners are quickly working with local planning officials to reposition inventory. The emerging market is for users of less than 10,000 square feet, according to David Shiver, principal with Bay Area Economics in San Francisco. "In year 2000, the question at large tech companies was ‘how can I get control of my real estate picture?' Lots of people grabbed lots of pieces they ended up not needing," Shiver said. He is helping clients see the slowdown as an opportunity to do more balanced planning. Bay Area Economics is working on projects that include subdivision of campuses or large office buildings for use by multiple tenants. The way Shiver sees it, the new buildings will eventually be needed because they include the type of wiring and space flexibility that was lacking in Silicon Valley in older developments. "Today, we are planning for intensification of these areas, especially in conjunction with smart growth concepts," Shiver said. He suggested that the Silicon Valley will become denser with more integration of land uses. The greatest densities will be near transit stops accompanied with high-density housing. Still, it will take time for the smaller-user market to reverse the trend. Shiver expects that 2003 will be the turn-around year. By then, new growth may be occurring with more foresight, flexibility, and with newer urban planning concepts in place. And, possibly, the tech behemoths will have covered their poor real estate decisions of the late 1990s. Stephen Svete, AICP, is president of Rincon Consultants, Inc., a Ventura-based consulting firm. Remember the "see-through" office building phenomenon that hit Houston during the mid 1980s and then Los Angeles in the early 1990s? Well, it's back. This time, it is the Bay Area that is afflicted with empty office buildings. For anyone who has followed the economy during the last two years, this is no surprise. But, because we tend to get more sophisticated with land economics as we weather one dip after another, the dynamics have changed a bit. First, it is the would-be tenants who are often holding the bag this time. And, second, developers are already fast at work with planning agencies to restructure empty inventory for the next big surge. Unlike the downturn of the early 1990s that put Southern California's speculative office developers on the ropes, the Bay Area skid is hurting the businesses that hold space leases that they now cannot fill. This difference is because of the technology industry's frantic space grab during the late 1990s. Worried about being closed out of their own home base, computer, telecom, and dot-com companies went on a speculative purchase and long-term lease binge of their own. So this time around, companies not ordinarily in the real estate business are eating the cost of empty office space. Companies have also simply canceled some projects. The most publicized of these was Cisco System's plans for a vast campus at a San Jose site known as the Coyote Valley. Although courts have recently rejected CEQA-related legal challenges on the 6.6 million-square-foot development, Cisco has already folded its tent due to drastically revised space absorption projections. The San Jose Mercury News documented some of the inventory glut last fall. In addition to abandoning Coyote Valley, Cisco Systems is leaving empty 11 buildings in San Jose and Milpitas, Inktomi is not filling two buildings in Foster City (still under construction); and 3Com has decided not to occupy an entire new campus in Santa Clara. And that's just the Peninsula and Silicon Valley. Although not known primarily as a technology sector office location, downtown San Francisco is taking a beating as well. San Francisco's financial industry and the South-of-Market dot-coms were part of the boom market, and downtown San Francisco office space grew tight even though it was among the most expensive in the country. Real estate analysts at Grubb & Ellis reported that the downtown San Francisco's negative net absorption – analyst lingo for vacancy growth – was the worst on record for the third quarter of 2001. Grubb & Ellis predicts a vacancy rise to 25% by June of 2002 — compared with a vacancy rate of only 2% two years earlier. The dampening market has also deeply affected lease rates. According to combined reports, Class A space in downtown SF has slid from nearly $79 per square foot per year for the second quarter of 2000 to $33 at the end of first quarter of 2002. This free fall in rents could be disastrous for landlords because $30 per year is widely considered the break even lease rate for offices in the vicinity of Montgomery Street. Many space owners are quickly working with local planning officials to reposition inventory. The emerging market is for users of less than 10,000 square feet, according to David Shiver, principal with Bay Area Economics in San Francisco. "In year 2000, the question at large tech companies was ‘how can I get control of my real estate picture?' Lots of people grabbed lots of pieces they ended up not needing," Shiver said. He is helping clients see the slowdown as an opportunity to do more balanced planning. Bay Area Economics is working on projects that include subdivision of campuses or large office buildings for use by multiple tenants. The way Shiver sees it, the new buildings will eventually be needed because they include the type of wiring and space flexibility that was lacking in Silicon Valley in older developments. "Today, we are planning for intensification of these areas, especially in conjunction with smart growth concepts," Shiver said. He suggested that the Silicon Valley will become denser with more integration of land uses. The greatest densities will be near transit stops accompanied with high-density housing. Still, it will take time for the smaller-user market to reverse the trend. Shiver expects that 2003 will be the turn-around year. By then, new growth may be occurring with more foresight, flexibility, and with newer urban planning concepts in place. And, possibly, the tech behemoths will have covered their poor real estate decisions of the late 1990s. Stephen Svete, AICP, is president of Rincon Consultants, Inc., a Ventura-based consulting firm.

March's statewide ballot proved to be a popular place to raise money and make budget decisions, and voters can expect to make similar decisions in November. In March, 57% of voters approved Proposition 40, which, at $2.6 billion, is the largest parks and environment bond ever proposed in California. Slightly more than two-thirds of the electorate voted for Proposition 42, which earmarked gasoline sales tax revenue for highway, street, road and public transit projects. Right after the election, backers of a high-speed train — including state Sen. Jim Costa (D-Fresno) — said they would try to get a $6 billion bond on the November ballot. The bond would provide enough money to build only part of the proposed 700-mile system: A route tying San Francisco and Oakland with Los Angeles via the San Joaquin Valley. Links to Sacramento, Riverside and San Diego would be built later (see CP&DR Public Development, December 2001, In Brief, March 2002). Also after the election, the Planning and Conservation League began gathering signatures on an initiative that would designate 30% of the state's share of the sales tax on motor vehicles for public transit, roads, bike lanes, sidewalks, and school bus replacement. The measure would generate about $870 million a year. Also likely to appear on the November ballot are a $13 billion school bond, and a $2 billion housing bond. The eight-year battle over reuse of the Tustin Marine Corps base appeared to be drawing to a close in March. The Navy, which owns the 1,600-acre site, transferred 1,000 acres to the City of Tustin. It plans extensive residential and commercial development. The Rancho Santiago Community College District received 15 acres for a new campus. The Navy will keep 240 acres, which it plans to sell to a developer. Approximately 300 acres are designated for parks. However, the longstanding fight between Tustin and the Santa Ana Unified School District over land for elementary and high schools continued, although negotiators said they were close to resolving things. Rancho Santiago and Santa Ana Unified had wanted a 100-acre site to build a K-14 learning center (see CP&DR Deals, October 2001). However, Tustin did not want to give up that particular site. Tustin offered Santa Ana Unified 22 acres elsewhere on the base, plus $38 million. The sticking point in negotiations was over a backup plan if the 22 acres proved to be too polluted for a school. All sides resumed negotiations in late February, when Duncan Holaday, the Navy's top base-reuse official, traveled to Orange County. Navy officials had suggested they would sell off the land if local officials could not reach agreement on reuse. The Belmont Learning Complex in downtown Los Angeles may get built yet. The Los Angeles Unified School District board voted in mid-March to complete the half-built high school. In January 2000, the district suspended work on the 34-acre campus designed to serve 4,600 high school students because of concerns over methane and hydrogen sulfide vapors remaining from the site's previous use as an oil field. Downtown advocates and Latino activists urged the district to complete the project. The board voted to resume construction after engineers presented a system for capturing and safely venting the hazardous gases. The school district has already spent about $175 million on construction and legal fees, and completing the campus could cost another $100 million, making Belmont the most expensive high school in state history. Some public health advocates remained unconvinced that the plan for handling gases will work. A 572-home subdivision proposed for the Verdugo Mountains was unanimously rejected in March by the Glendale City Council. Area residents had rallied in opposition to the "Oakmont View V" project, which called for building luxury homes on steep hillsides above existing neighborhoods. An environmental impact said the development would harm air quality, wildlife and scenic vistas. City planners said the project was inconsistent with the general plan and could pose a landslide hazard. Upon voting, Councilmembers said the project would irreparably harm the hillsides that help frame Glendale. The developer, Gregg's Artistic Homes, said it would file a takings lawsuit against the city. City of Los Angeles voters could decide no fewer than three proposals to carve new cities out of the existing city this November. Separate proposals for secession of the San Fernando Valley, Hollywood and the harbor area all could appear on the ballot at the same election. In March, the Los Angeles Local Agency Formation Commission released a report that said Hollywood would be a financially viable city, even if the new city paid Los Angeles between $11 million and $25 million annually (depending on the size of the new city) to make Los Angeles fiscally whole. Earlier, LAFCO concluded that the San Fernando Valley could make it as a city, while the harbor area would lack enough money to survive. LAFCO is scheduled to decide later this year whether to place any or all of the secession proposals before voters in November. Secession requires a majority vote both inside and outside the proposed boundaries of a new city. A permit for a gravel mine on federal land in the Soledad Canyon, just outside the City of Santa Clarita, was denied unanimously by the Los Angeles County Board of Supervisors in late February. The decision cheered city officials and residents, who say the 460-acre quarry would congest roads, add to air pollution, threaten groundwater, and look ugly. Transit Mixed Concrete had already sued the county, insisting that the county must abide by a Bureau of Land Management permit that allows the mine. Groundbreaking for the University of California, Merced, campus has been postponed from May until September because of a lawsuit filed by three environmental groups. The groups say that the environmental impact report approved by UC regents in January was inadequate and that UC has illegally segmented the project to avoid comprehensive study, charges that UC denies. Water quality regulators have begun reviewing Central Valley farms' longstanding exemption from the state Clean Water Act. The Central Valley Regional Water Quality Control Board, which has jurisdiction over the valley and foothills from Redding to Fresno, announced in March it would prepare an environmental impact report on runoff from farms. Also, the state Water Resources Control Board said it would contribute $1 million toward monitoring drainage canals in the valley. The federal Clean Water Act exempts agriculture, but the state law does not specifically exempt farm discharges. Still, the Central Valley regional board has not applied the rules concerning pesticide and silt runoff to farms. Environmentalists insist that farms cause some of the biggest water pollution problems in Northern California. They hailed the state regulators' announcements as an important first step. Angry farmers said they already do their part to control and filter runoff. The Southern California Association of Governments has hired Calthorpe Associates to lead a six-county "growth visioning" effort. The project will attempt to bring together government agencies and private enterprise to address ways to provide housing, services and infrastructure for an anticipated 6 million additional residents. Calthorpe, headed by renowned New Urbanist Peter Calthorpe, has led similar efforts in Salt Lake City, Portland and other metropolitan areas.