A developer who lost his ownership interest in a piece of property had no standing to seek a court order forcing a county to recognize a 19th century subdivision of the property, the Second District Court of Appeal has ruled. A unanimous three-judge panel of the Second District, Division Six, overturned a trial court's writ of administrative mandamus in the case. In 1995, Jack Munari applied to the San Luis Obispo County planning department for 577 certificates of compliance for 834 acres of range land near Paso Robles. In 1889, a subdivision map for the property had been filed with the county clerk, but the site was maintained for agriculture. In July 1996, the planning department rejected the application, saying the 1889 map did not create separate parcels under the Subdivision Map Act. Planners said they would allow only 135 lots to be developed. Munari appealed to the Board of Supervisors, which upheld the planning department in January 1998. The following month, Munari filed a lawsuit requesting declaratory relief, a writ of administrative mandamus, and compensation for inverse condemnation and violation of his civil rights. Four days after filing the suit, however, Munari lost the property in a foreclosure sale to William Zappas, a lienholder. Zappas then intervened in the suit and assigned the action to the Weyrich Development Company. Weyrich proceeded to settle with the county for 146 lots and dismissed the action. However, nearly three years after Munari lost the property, San Luis Obispo County Superior Court Judge Jeffrey Burke granted Munari's motion for summary adjudication on his mandamus and declaratory relief claims. Judge Burke said that the 1889 subdivision map created valid lots under the Subdivision Map Act and the county was obliged to issue 577 certificates of compliance. The appellate court, however, never reached the merits of the case. " mortgage foreclosure," Justice Arthur Gilbert wrote for the court, "divested Munari of all interest in the property prior to completion of judicial review of the administrative action. This makes it impossible for Munari to receive relief." "Moreover," Gilbert wrote, "Munari's successor-in-interest has settled with the County. It is undisputed that the settlement requires the County to issue significantly fewer certificates than the 577 certificates Munari sought." Munari argued that the trial court only ordered the county to vacate its position. Thus, should Munari reacquire the property, he would be entitled to the certificates of compliance. But the court refused to make such a hypothetical determination. "Under Munari's reasoning, a stranger to these proceedings could make the claim that he or she may someday acquire the subject property and, therefore, is entitled to petition for mandamus, " Gilbert wrote. "Hope springs eternal, but writ relief is temporal and requires firmer substance." The Case: County of San Luis Obispo v. Superior Court, No. B147202, 01 C.D.O.S. 5520, 2001 DJDAR 6739. Filed June 28, 2001. The Lawyers: For the county: Raymond Biering and Rita Sciaroni, deputy county counsels, (805) 781-5400. For Jack Munari: William Walter, (805) 541-6601.

While finger-pointing and chest-thumping have been California politicians' most visible reactions to the latest version of the energy crisis, a few local governments are slowly emerging as leaders in addressing the new energy crisis. The most aggressive of these agencies are going beyond simple conservation programs and actually using their existing facilities as alternative energy power generating locations. And some are seeing that by being leaders in alternative energy production, they can gain competitive advantage in all things civic. The newfound zeal to conserve and produce locally is not really new. Back in the 1970s, California took an aggressive approach to the first energy crisis. Under Jerry Brown's administration, the state constructed an elaborate tax incentive program that rewarded property owners who retrofitted with solar collectors or other devices. The state passed Title 24, one of the most energy-conserving construction codes in the world. A host of local governments passed solar access protection ordinances, and building orientation became a staple of site planning. On all fronts, conservation and personal responsibility were emphasized in policy discussions and they permeated the public consciousness. But government lost interest. In the post-Proposition 13 era, the emergence of corporate models of governance came into vogue. A series of less environmentally oriented governors and their colleagues in the Legislature even phased out the tax breaks for solar collectors and other energy-saving features. The trend of purchasing more fuel-efficient vehicles — and corresponding state regulations requiring fuel efficiency — stalled. Energy conservation dropped away from public discussions. And finally, deregulation was passed. The seeds of our current crisis were sown. But the harvest may not be entirely bitter. Pat Stoner, resource conservation specialist with the Local Government Commission, is optimistic about local government's potential. "I think they are doing more than we give them credit for," he said. Nevertheless, one must concede that we could count on two hands the number of cities and counties in the state that are committing themselves to finding their own solutions to the energy problem. Not surprising on the list of proactive local governments is the City and County of San Francisco, which is tackling the difficult problem of reducing energy demand at small businesses. Most small businesses rent their digs and therefore have a disincentive to invest in lighting and energy retrofits. Whereas large utility companies in the state have managed energy retrofit programs for their largest customers for some time, San Francisco sought and received an $8 million grant from the state Public Utilities Commission to launch their "Power Booster's" program. The program will fund free energy use audits for 6,000 small businesses and retrofit up to 4,000 of them with energy-efficient lighting. The energy savings will be significant. Small businesses are estimated to consume 22% of the power in the city, and the projected savings of 24 million kilowatt hours annually is expected to provide enough power for 12,000 San Francisco residences. San Francisco is also planning to expand its role in the power production business. As of late July, the San Francisco Board of Supervisors was considering placing a charter amendment before the voters to enable city's municipal utility to invest in solar and other renewable energy infrastructure. City officials see an opportunity to level the playing field with the traditional energy provision utility companies by (1) guaranteeing the purchase of a stable amount of energy from renewable sources and (2) directly supplying a portion of the city's own demand through a vast retrofit program of public buildings. The initiative could go before San Francisco's voters in November. Meanwhile, Alameda County just completed a $4 million solar panel retrofit project for the Santa Rita jail in Dublin. The 4,000-panel system will cut energy demand for the facility by 20% — a savings of $300,000 per year. And things are happening in other parts of the country, too. Most ambitious is Chicago's program. The Windy City has adopted a measurable goal that is both ambitious and admirable: Within five years, 20% of the city's electricity for all public uses – from elevated trains to elevators – will be provided by renewable resources. To help meet the goal, Chicago has teamed with the state and a major utility to build a solar power generating station in nearby Lake Calumet. Chicago officials say that such initiatives will enable Chicago to become one of the largest "green" cities in the world. Many economic development professionals believe that by simply committing to such policies, cities like Chicago gain important competitive advantages. By showing leadership in resolving infrastructure problems while supporting emerging technologies such as green energy, such localities position themselves as problem-solving initiative takers. That is a good reputation to have if a community wants to develop a range of human cultural endeavors, including business. Stephen Svete, AICP, is president of Rincon Consultants, Inc., a Ventura-based consulting firm.

Here is a twist on the familiar story of neighborhood groups negotiating with developers: The two sides did not limit their discussion to traffic congestion. On the table were a surprisingly wide array of social and environmental concerns, including hiring guarantees, wage levels, job safety and affordable housing. The story becomes even more interesting when we become aware of who was sitting at the table: On one end was LA Arena Land Company, a company whose principals include three billionaires: Los Angeles developer Ed Roski Jr., railroad and multiplex magnate Philip Anschutz, and media übermensch Rupert Murdoch. On the other side of the table was a coalition of neighborhood groups, environmental groups and labor unions representing thousands of poor people who live near the arena. In short, the negotiations, which concluded in May, took place between some of the wealthiest people in the country and some of the poorest. Under the resulting deal, the business moguls promise to hire local residents for the majority of permanent jobs to be provided by the project, pay workers $7.72 per hour with benefits, or $8.97 without them, build at least 160 units of affordable housing, provide a fund for parks, create a "preferential parking district" for local residents and serve up a host of other community advantages. The working poor who live near the glitzy sports arena could use some benefits. The novelist William Faulkner could have been writing about Los Angeles's working class, Spanish-speaking neighborhoods when he wrote the famous sentence: "They endured." Specifically, the low-income residents of downtown Los Angeles endure unskilled or semi-skilled labor jobs and low wages, and indifferent public transit. Politically atomized and outwardly timid, they do not seem to attract attention of the general public, except when gang violence threatens to spill over neighborhood lines. The $300 million Staples Center has been very successful for its owners, and perhaps its fans, during its two years of existence. Situated next to the Los Angeles Convention Center, Staples Center is home base to five professional sports franchises, including the Los Angeles Lakers. The facility also hosted the Democratic National Convention last summer. For people who live in the immediate neighborhood, however, Staples Center has been a swift pain. Parking is unavailable on game nights, and renters find themselves slapped with $60 parking tickets, "which is pretty major for a garment worker making below minimum wage," said Sandra McNeill, an organizer with Strategic Actions for a Just Economy (SAJE), a nonprofit group that works with poor people. One parent complained that she was unable to transport an asthmatic child to the hospital because post-game traffic was so thick. The lowest point came during the political convention, when some local residents found themselves prevented from entering their own homes by riot police. Community leaders began assembling their coalition in May 2000, shortly after reading in the Los Angeles Times that a Los Angeles City Council committee was already studying a $1 billion expansion to the Convention Center-Staples Arena juggernaut. LA Arena Land wants to build a 45-story convention center hotel, a 7,000-seat theater, and an undetermined amount of retail space on two shopping streets that will flank the sports arena. The city, for its part, wants to expand the 1 million-square-foot Convention Center by another 250,000 square feet and two build two high-rise apartment towers with a total of 800 units and possibly another hotel, as well. The project has been described in the real estate trades as "the biggest mixed-use project ever proposed for downtown" Los Angeles. The core group of what would become the Figueroa Corridor Coalition for Economic Justice was SAJE and Hotel Workers and Restaurant Workers Local 11. The latter group is one of the most active labor organizers in Los Angeles, with on-going labor actions against hotels in downtown Los Angeles and Santa Monica. The coalition was later joined by a number of other groups, including Esperanza (a community-based non-profit home builder), Los Angeles for a New Economy (another local group concerned with working conditions), and a local chapter of Environmental Defense. The fledgling coalition called for a meeting with then-City Councilwoman Rita Walters, who in turn arranged a meeting with the developer. The first meeting, in September 2000, did not go smoothly, however. LA Arena president Tim Leiweke, who is also president of the Kings hockey franchise, was scheduled to meet with a group of organizers and local residents. Although a group of staff people showed up to represent the developer, Leiweke was not among them. A number of people apparently felt snubbed, and the meeting became raucous, some people directing angry comments to Leiweke's conspicuously empty chair. Things improved the following month when Leiweke handed off the negotiations to senior vice president Ted Tanner, a former executive with Catellus and someone with more community-relations experience than the sports executive. Tanner had the grace to read his presentation entirely in Spanish, which he does not speak, and what he lacked in pronunciation was compensated by goodwill. At this point, the negotiations took on a positive tone, and the activists set forward a remarkably detailed set of demands on wages, housing, work and even open space for local residents. In May, the developer and the neighborhood groups arrived at a set of concessions. "We didn't get everything we asked for, but we achieved a really solid agreement, and we were really pleased," SAJE's McNeill said. Tanner could not be reached for this article, but we suspect that "doing the right thing" was not the only factor behind the concessions. The developer is reportedly expected to ask for a $75 million subsidy from the city, and the strong support of the neighborhood — and the councilmember from the district — may sway an otherwise skeptical City Council. Politically calculated or not, this set of concessions seems remarkable for the emphasis on what could be called the "quality of daily life," as well as the familiar mitigations for environmental impacts. Projects like Staples Center, which occur in a dense, urban context, have many human impacts. The Figueroa Corridor Coalition has provided a useful index of those impacts, and the way that developers of major projects might respond to the difficulty of building in our ever-densifying cities.

The U.S. Supreme Court will decide a case in which Lake Tahoe property owners allege that a temporary building moratorium amounted to an unconstitutional taking. The Supreme Court likely will hear oral arguments this fall in Tahoe Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 00-1167. The court agreed to consider only one question from the multi-faceted case: "Whether the Court of Appeals properly determined that a temporary moratorium on land development does not constitute a taking of property requiring compensation under the Takings Clause of the United States Constitution?" The Tahoe Sierra Preservation Council has been in litigation against TRPA, a bi-state agency that oversees development in the Tahoe Basin, since the 1980s. But the Preservation Council, which represents about 450 property owners, has lost four separate rounds at the Ninth U.S. Circuit Court of Appeals. Last year, the Ninth Circuit ruled, among other things, that a 32-month building moratorium which TRPA imposed while adopting a regional plan was not a taking. The Ninth Circuit panel called a temporary moratorium a "crucial planning mechanism." Landowners had argued the moratorium was a taking because it denied "all economically beneficial or productive use of land" while it was in effect. The landowners asked for a rehearing before the whole Ninth Circuit. Five judges voted to hear the case, which was not enough for reconsideration. That caused conservative Judge Alex Kozinski to pen a sharp dissent in which he said the three-judge panel that ruled in the case had overturned the First English precedent that established the concept of "temporary takings." First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304 (1987). The Ninth Circuit's ruling was a major victory not only for TRPA, but for a large number of government entities that submitted amicus briefs in the case. A contrary ruling would make government agencies liable for imposing a building moratorium, which would harm good planning, the agencies argued.

The Bay Area town of Hercules has adopted a new plan that city officials hope will allow the town to capitalize on a unique asset: 400 acres of mostly vacant land, some of it with sweeping bay views, situated in the middle of town. Not long ago, city officials came close to simply zoning the property and letting development run its course. Instead, the city has adopted a New Urbanist "district plan" that is designed to turn the area into the town center that Hercules has never had. The plan, which the City Council adopted in July, outlines four different districts — waterfront, central quarter, hill town, and civic center/hospitality corridor. The districts have differing emphases, and a variety of uses is permitted in all. The district plan relies heavily on a design code, which is nearing completion. The design code creates a network of streets that help determine parcel size. There are 12 different types of streets, each with corresponding massing guidelines, build-to lines and architectural requirements. Instead of dictating the permissible uses of each parcel, "what you are really doing is typologically coding the urban areas," Community Development Director Steve Lawton said. Located about 15 miles north of Oakland in Contra Costa County, Hercules has a colorful past as a Gold Rush town. There was no gold in Hercules' hills. Rather, Hercules grew up as a company town for the California Powder Works, one of the world's largest manufacturers of dynamite. An extensive network of narrow gauge rail lines extended from a pier in San Pablo Bay to dispersed buildings where workers handled black powder, nitroglycerine and other volatile materials. By the time the dynamite factory went out of business in the early 1970s, Hercules had become an oil town. Again, there were no resources in Hercules. Instead, a huge oil refinery had become the city's landmark. Because the refinery provided the city with a large amount of sales tax revenue, city officials were satisfied to let the town become a bedroom community and they did not pursue economic development. "The city, as it grew up as a bedroom community, blew it," said Lawton, an 11-year resident and former planning commissioner. "There was no strong business community. It was just a bunch of homeowners. … The normal financial tools of a city, in retrospect, were not grasped." The scene changed when homebuilding stalled and the oil refinery closed in 1992. Many city leaders wanted Hercules to remain a quiet residential community, and City Hall stayed alive thanks to a $30 million cushion of sales tax revenue built up over the years. But projections showed that the city eventually would deplete the sales tax reserve. The need for more revenue combined with proximity to Interstate 80, a lack of shopping, a large piece of vacant land and about 20,000 mostly middle-class residents meant that Hercules was ripe for retail development. The city even made a deal to attract The Home Depot. But some civic leaders, including Lawton, a member of the Congress for the New Urbanism, wanted more than a faceless collection of sales-tax-generating boxes. In 1999, the Planning Commission decided to pursue a district plan for the 426 acres in the center of town. The city's Redevelopment Agency and two major developers, Bixby Land Company and Catellus Development, shared the cost of the $300,000 planning effort. The city hired Dover, Kohl & Partners, a New Urbanist design firm from Florida, to help craft the plan. The city and its consultants examined not just at the land, but also the retail and housing market conditions. In June 2000, the city conducted a 10-day design charrette in which about 400 citizens participated. In December 2000, members of the Planning Commission and City Council toured New Urbanist developments in Florida. The end result was a district plan with tremendous political support. Both the Planning Commission and the City Council voted unanimously for the document. Because the plan only roughly defines permissible uses, what exactly gets built is uncertain. There will be at least 1,500 housing units, a mixed-use town center, some civic facilities, light industry, and extensive retail and service-oriented development. Bixby Land had proposed a "traditional neighborhood development" for the 125-acre Waterfront District before the city became serious about the district plan. Clearly, city officials are excited about Bixby's project, and Bixby is happy to see City Hall take the New Urbanist route. Grading began this spring on the first phase of the Bixby project — a 200-unit single family home subdivision. Rough grading is scheduled to begin later this year on a mixed-use town center of three- to five-story buildings on a hill overlooking the bay. The town center will allow for — but will not mandate — commercial uses on the ground floor and residential uses above, said Bixby project planner David Sargent, of Sargent Town Planning in Ventura. "The point is to make the building types flexible so as the market for different types of residential or office or retail or service uses evolves over time, the buildings can adapt," Sargent said. Future phases of Bixby's waterfront project are a mixed-use village, a mostly residential development, and what has the potential to become the town's new signature — reuse of Hercules Point. The point juts into the bay, providing expansive views of the bayshore and Marin County. Design plans are preliminary, but development will probably involve civic and public uses, as well as some retail, Sargent said. The main street in the planned town center will run directly toward Hercules Point. Also under consideration is reconstruction of the pier, which could provide a ferry station. That would make the Hercules project "multi-modal," as an Amtrak train station — for which the state has committed $3 million — is planned between the new town center and Hercules Point. The city intends to build a large parking lot near the train station, from which it will be a short walk to most of the Bixby project. Lawton said the city avoided the normal planning route. The district plan's environmental document is tiered off the general plan EIR, which assumed a significantly higher buildout. The city's reliance on a design code, rather than a detailed zoning ordinance, means that many uses will be allowed by right and eligible for administrative approval, Lawton said. "We are dramatically compressing the cycle time for entitlement. We are not touching the cycle for project-specific environmental review," Lawton said. Sargent believes Hercules is in an enviable position. "How many cities are there that have an existing, solid population base, a location close to a thriving urban metropolis, and a 400-acre blank spot in the middle? It's just sort of an accident of topography and history — and of the economic pressure to do something with it," Sargent said. Contacts: Steve Lawton, Hercules Community Development Department, (510) 799-8233. David Sargent, Sargent Town Planning, (805) 644-1892. Dover, Kohl & Partners website: www.hercules-plan.org

Regional land use planning efforts appear to be gaining momentum in several portions of California, with San Diego County heading toward a potential "regional authority." Business interests, frustrated that no entity addresses many cross-jurisdictional issues, appear to be a major driver of the regional approaches. Assembly Speaker Robert Hertzberg also has shown himself to be a regionalist, and a commission he appointed last year continues to formulate recommendations. However, many cities, counties and existing councils of government remain skeptical about new regional approaches — especially those that involve tax-sharing, decreased local control and creation of new agencies. Looming large in the background of the regional planning debate is a possible statewide ballot initiative backed by the cities and counties that could lock in property tax levels. More people are talking about the need for regional approaches, but implementation is difficult, said Carol Whiteside, president of the Great Valley Center and a member of the Speaker's Commission on Regionalism. "The thing gets bogged down when you start talking about governance," she said. Elisa Barbour and Michael Teitz of the Public Policy Institute of California, in a paper prepared for the Speaker's Commission, summed up the current system: "The crux of the regional planning problem is how to develop coordinated policies to address problems that are regional in scope in the absence of general-purpose governments operating at a regional scale." Several other states have far more extensive regional — and even statewide — planning systems than California. In this state, single-function agencies and special districts arose after World War II. Those entities have remained in place while proponents of new, multi-function agencies have met stiff resistance from local government and taxpayers groups complaining about a "new layer of government." And no one has dared talk about a state plan since the Jerry Brown administration. The result is a fragmented planning system ill-suited to addressing the state's densely populated regions. Barbour and Teitz identified deficiencies in the current system: "The state-led planning agencies were organized along single-purpose functional lines, and they traditionally have not coordinated plans. Thus, the system is horizontally fractured. The regional agencies have no direct control over local land use, although their policies are often directly related to land use patterns. So the system is also vertically fractured. Local land use decisions often drive the planning process because regional agencies must take local plans and projections as given." Speaker's Commission Moves Forward In announcing creation of the Commission on Regionalism last fall, Hertzberg talked about the "Winchester Mystery House effect" that results from more than 5,000 cities, counties and special districts working independently. Hertzberg, who has shown strong interest in local government, pitched three propositions: "First, the current structure of government in California today is outdated and poorly equipped to deal with many of the issues of the day. Second, the winners in the new economy will be the people — and the businesses — in well-run regions. And third and finally, because the new economy will reward successful regions, it's time for California to give regionalism a new look." Hertzberg tabbed Nick Bollman, president of the California Center for Regional Leadership, as chairman of the new Commission. In July, Bollman said the Commission has taken a different approach than previous panels that tackled the subject. The Commission recognizes that local fiscal certainty is essential for getting good regional decisions, the Commission wants to allow different regions to try different approaches, and the Commission sees no magic bullet answers, Bollman said. He believes the Commission's work will result in legislative proposals this summer. The Commission addressed state-local fiscal issues first because "without the right fiscal signals, all the best intentions about planning are meaningless," Bollman said. In April, the Commission adopted 20 recommendations, many of which drew on the work of previous task forces. Many of the proposals are aimed at keeping the state's hands off local revenues, reducing local government's reliance on sales tax and boosting the share of property tax received by local government. Next on the Commission's agenda was collaborative regional decision-making. Bollman and others believe it is essential to establish outcome goals on issues such as housing and transportation. Then the state needs to facilitate a system in which regions could work toward meeting those goals. This is not an entirely new idea, but the Commission has gone further by suggesting that state agencies have a seat at the regional table. Bollman pointed to Caltrans' extensive participation in Riverside County's process that integrates its general plan, transportation plan and habitat plan as a good model. The Commission might recommend creation of a state-chartered, public-private entity to help manage the realignment of interests around regional strategies. This new entity would monitor progress and might even have dollars to award and the ability to waive regulations, Bollman said. The last piece would be a "new regional governance" that ensures collaborative planning without creation of new regional governments. "This really is about strengthening the ability of local agencies, regional agencies and state agencies to do their jobs better," he said. Whiteside, of the Great Valley Center, is skeptical that legislative proposals emerging from the Commission will get far this year because of the Capitol's focus on electricity. But the Commission does get people talking and it exposes different models — all of which could lead to experimentation by existing agencies. For Whiteside, flexible approaches — and even flexible boundaries — are essential. Housing issues might spread over one area, habitat concerns could have different boundaries, and transportation plans might cover a different area yet, she said. Such flexibility can make things complicated and raise accountability issues, but rigid boundaries make no sense, she said. "The challenge is to make this operate seamlessly because the people don't care about the structure. They care about results," Whiteside said. How much progress the Commission will make remains uncertain, but Bollman believes now is the time. "There appears to be a kind of golden convergence," he said. "It's clear to all of the interest groups that coalesce around these issues that we are in a near crisis mode with regard to planning for the population growth that we will have." Regis Gets Attention in San Diego Legislation last year by state Sen. Steve Peace (D-El Cajon) forced San Diego to reconsider its local and regional planning processes. Peace originally proposed a bill that would have merged five existing entities, including two transportation boards and the port authority, into one super agency. Local officials eventually convinced Peace to tame the measure, which instead created the 11-member San Diego Regional Government Efficiency Commission (RGEC, or Regis). The commission's final report was due to the Legislature August 1. In June, RGEC recommended creation of a regional airport authority with an appointed nine-member board. A key part of the recommendation is that the airport authority be armed with the power to override (with a two-thirds vote) local decisions to block a new airport. San Diego area officials have talked for decades about a new international airport either to compliment or to replace the highly constrained Lindbergh Field. However, no consensus has ever been reached on a site. The primary mission of the new authority would be to select a site and build an airport. The panel's more controversial proposal concerns a regional land use agency. In late July, it appeared the panel would recommend creation of a new regional authority for San Diego County. If state lawmakers agree with that idea, voters would decide next year, said Kirk Mather, consultant to RGEC. The idea is to establish a seven- to nine-member elected body — either entirely new or the county Board of Supervisors plus a few additions — that would have some level of authority over development and conservation decisions across the county. "If you look at where we are headed in the next 20 to 30 years, San Diego will have another 1 million people," said Byron Wear, a San Diego city councilman and chairman of RGEC. "Sixty percent of them will be our children and our grandchildren. We have to revise our land use plans." The general plans for San Diego County and its 18 cities are about 150,000 units short of meeting the need, he said. Officials at the San Diego Association of Governments (SANDAG) have not reacted favorably. Ramona Finnila, a Carlsbad city councilwoman and chairwoman of SANDAG, said SANDAG has addressed 26 different topics, ranging from affordable housing and transportation planning, to electricity restructuring and beach sand replenishment. "We think we have an excellent model of regional government right here," Finnila said. SANDAG has a smart growth strategy and an economic development plan and is already providing incentives for transit-oriented developments, she said. "We have got all these things that other areas are just talking about getting," Finnila said. Wear and others respond that their gripe is not with SANDAG itself but with SANDAG's lack of authority and its structure that gives small communities disproportionate say in regional debates. "There is a feeling," said Mather, "that SANDAG may be the best COG in the country, but we deserve better. We need something with some teeth in it. … We need a regional plan." The proposed regional authority would adopt a regional land use plan based on carrying capacity, Wear said. He favors an incentive-based approach that would, for example, provide more discretionary funding for a city that approves high-density housing near a transit corridor. The new entity would not have absolute control, and there would be a system to allow small town officials to be heard, Wear said. The regional authority could look similar to the advisory council that makes a variety of development and public services decisions in Portland, Oregon, Mather added. But Finnila is not convinced, and she criticized state lawmakers for creating a hurried process and providing no funding. "There has not been a good process in this commission. It lacked the time to do a good job. It lacked the time to study issues rather than get an overview," Finnila argued. Instead, she said, everyone should wait for the report from the Speaker's Commission. The state should then provide resources for whichever region wants to serve as a "guinea pig" for the Commission's recommendations, she said. Tax Sharing in Sacramento A bill by Assemblyman Darrell Steinberg (D-Sacramento) would make a seven-county region into a test case. The bill stalled this year but will return next year, according to a Steinberg aide. In its latest form, the bill would allocate all growth in sales tax revenue in the region by population. The bill would also divert money from the Education Revenue Augmentation Fund to establish "smart growth land use projects" in the region. The bill establishes air quality credits for jurisdictions that adopt smart growth plans. Those credits could be sold to new power plants, with revenue funding open space acquisition. During hearings, Steinberg said he wanted to prevent jurisdictions from competing with one another for sales-tax producing retail development. He said jurisdictions should cooperate so that such developments are built in the best locations. Steinberg originally proposed using state funds to backfill any jurisdiction that lost money under the new formula, but few people expect that provision to fly. The cities of Roseville and Elk Grove became two of the leading opponents of the bill. In the last decade, the western Placer County city of Roseville has approved extensive retail developments and a huge auto mall. Elk Grove, a year-old Sacramento County city, recently approved a 295-acre shopping mall. Those cities have made decisions based on existing fiscal conditions, and it is unfair to change the rules, said Daniel Carrigg, a lobbyist for the League of California Cities. The trouble with AB 680 and many of the Speaker's Commission's recommendations is that they do not expand the pie, they simply re-slice it, said Carrigg, who decried the nine-year-old ERAF shift of property taxes from cities and counties to schools. Changing formulas for allocating the same amount of money does not ensure that governments will make "better" land use decisions or that developers will proposed different projects, he said. "One of the first things we would say is, you need to ask local governments what tools they need," Carrigg said. In fact, that is Steinberg's latest tack. Because the top-down approach failed, Steinberg has asked local officials to reach common ground and propose language for a revised bill next year. Whiteside called AB 680 "timely and relevant" and noted that it has engaged many people. "I think that the Sacramento region is a great one to try this in because it's not so huge like Los Angeles is. It has a lot of growth potential, and it has a pretty strong center city with revenue issues. And it has a very well defined set of first-ring suburbs with declining sales tax revenue," Whiteside said. Other Efforts A number of other entities also are discussing or pursuing regional planning. The Bay Area Alliance for Sustainable Development, a collection of business, environmental and other entities, continues its four-year effort on a compact for sustainable growth in the Bay Area. Related to that, the Association of Bay Area Governments and other existing regional entities are pursuing a "smart growth strategy" to assist cities and developers. Contra Costa County Supervisor Mark DeSaulnier has urged the Legislature to create a Bay Area Regional Coordinating Council that would tackle a wide variety of issues. DeSaulnier has also proposed merging ABAG and the Metropolitan Transit Commission. An informal collection of officials from local government in the Sacramento region has formed the Sacramento Regional Partnership to discuss transportation, land use and social issues. Also, business and civic leaders have formed Valley Vision, which has scheduled a series of gatherings to discuss regional issues this summer and fall. Riverside County continues work on its integrated plan. While not truly a regional effort, proponents of regionalism are encouraged by Riverside County's decision to craft plans all at once for development, habitat conservation and transportation. Sources: Nick Bollman, California Center for Regional Leadership, (415) 882-7300. Carol Whiteside, Great Valley Center, (209) 522-5103. Byron Wear, San Diego city councilman, (619) 236-6622. Ramona Finnila, Carlsbad city councilwoman, (760) 434-2830. Daniel Carrigg, League of California Cities, (916) 658-8200. Speaker's Commission on Regionalism website: www.regionalism.org/ San Diego Regional Government Efficiency Commission website: www.sdrgec.org/ Bay Area Alliance for Sustainable Development website: www.bayareaalliance.org

An environmental group that sued the California Department of Forestry and Fire Protection over environmental review of a North Coast timber harvest lost its chance to pursue the lawsuit because it did not request a hearing within a prescribed deadline. Guardians of Elk Creek Old Growth argued that it had more time to request a hearing because the suit was moved from Sacramento County to Mendocino County. But a unanimous three-judge panel of the First District Court of Appeal, Division Three, ruled that no time extension was warranted because all parties were notified of the change of venue. Guardians of Elk Creek filed a lawsuit on May 3, 1999, challenging a timber harvest plan submitted by Redwood Empire Sawmills and Pacific States Industries. The timber companies, which are the real parties in interest in the suit, requested a venue change. The Sacramento County Superior Court approved the request, and on May 27, 1999, the Mendocino County Superior Court notified all parties that it had received the case file. On August 3, 1999 — 92 days after the lawsuit was originally filed — the timber companies asked the court to dismiss the case because the environmental group had failed to comply with Public Resources Code § 21167.4, which requires a plaintiff to file within 90 days a request for a hearing. On August 11, 1999, Guardians of Elk Creek requested a hearing, but Mendocino County Superior Court Judge Vincent Lechowick dismissed the lawsuit. Guardians of Elk Creek then appealed. The timber companies and CDF argued that the appeal was moot because the timber harvest had been completed. But the appellate court said it wanted to eliminate confusion over the case on point, Dunn-Edwards Corp. v. Bay Area Air Quality Management Dist., (1992) 9 Cal.App.4th 644 (see CP&DR Legal Digest, October 1992). In Dunn-Edwards, which was later overturned on other grounds, the court held that a petitioner is excused from the timely requesting of a hearing if the trial court fails to notify the parties that the case has been transferred. Guardians of Elk Creek argued that under Dunn-Edwards, the 90-day period began after the case was refiled in Mendocino County. But the appellate court disagreed. "The date the petition was originally filed is the beginning of the 90-day period for requesting a hearing," the court ruled. "The petitioner is excused from complying with that restriction only if the receiving court fails to notify the parties that the case is on file." The Case: Guardians of Elk Creek Old Growth, v. California Department of Forestry and Fire Protection, No. A088611, 01 C.D.O.S. 5197, 2001 DJDAR 6375. Filed June 21, 2001. The Lawyers: For Guardians of Elk Creek: Kimberly Burr, For CDF: Michael Neville, deputy attorney general

The City of Stockton in June completed a brownfield reuse project that some people view as a milestone in the slow rebirth of the downtown of the San Joaquin County seat. After about six years of study, cleanup and construction, the city has opened a waterfront plaza that connects the two-year-old outdoor events center with a historic hotel that is scheduled to be refurbished. The park also provides the first link to the waterfront. "I think getting it done will have a huge psychological impact," said Stockton Housing and Redevelopment Director Steve Pinkerton. "Even though there was no wall there, it was just a huge separation between the downtown and the waterfront." "This is regarded widely as the catalyst project to bring our downtown back," said Tim Viall, executive director of the Downtown Stockton Alliance, a quasi-government business improvement district. The new park is also one of the few projects in California stemming from the federal Environmental Protection Agency's brownfield pilot project that has come to fruition. About 20 agencies in California have received pilot grants since the EPA began its Brownfields Action Agenda in 1995 to help communities reuse abandoned or under-used industrial and commercial sites. But few of those agencies have been able to complete all the steps necessary — including full assessment and a state-approved cleanup — to redevelop a contaminated site. In 1996, Stockton received a $200,000 brownfield pilot grant, shortly after the Urban Land Institute completed a waterfront plan for the city. The grant allowed the city's redevelopment agency to conduct "phase one" assessments of several brownfield sites. The city then focused its efforts on a sinking, fenced off parking lot next to the end of the shipping channel. A parking lot and gas station had been built on the site during the 1950s. Prior to that time, it was industrial land that had been used in the shipping industry for 100 years. (Located 80 miles east of San Francisco, Stockton originated as an off-loading point for gold miners, and a deep-water channel has long provided the city with a significant shipping industry.) Eventually, the gas station closed and the parking lot was fenced because the whole thing had been built on creosote piers and was slowing sinking, said Kitty Walker, brownfields project manager for the redevelopment agency. The city used the EPA pilot grant to complete a "phase two" assessment, which more fully identified the extent of contamination. After concluding that the contamination was an acceptable risk and becoming familiar with the state's Polanco Act, which would allow the city to pursue cleanup costs from past landowners, the city purchased the two-acre site in 1998. Later that same year, the city received $3.5 million in federal funding from the Department of Housing and Urban Development — a $3 million economic development initiative loan and a $500,000 brownfield economic development grant. At the same time the city was lining up financing and working on detailed plans for the site, it was completing the cleanup process supervised by the state Department of Toxic Substances Control and the Central Valley Regional Water Quality Control Board. Actual remediation costs totaled only $100,000 even though the review process took several years — a sore point with city officials. The city broke ground on the waterfront square last fall and cut the ribbon on the $4 million park in late June. The site features a large fountain that connects to the channel, extensive landscaping, and a hardscape area. Space has been set aside for a seasonal ice rink – similar to the one in downtown Sacramento – and there is room for a restaurant to be built later. City officials plan to use the square for farmers' markets and civic events. "We're bringing the waterfront back into downtown," said Walker, who believes the district has "finally turned the corner." Thomas Mix, a brownfields coordinator for EPA Region 9, called the waterfront plaza one of the pilot program's highlights. Creating a public gathering place "works hand in hand with the overall goal of the brownfields program, which is about making the best of what you've got," he said. "It really was a visual blight, and it was a key part of their redevelopment area." Part of reason for Mix's excitement is his belief that the project will induce private investment in downtown – an opinion shared by many people. More than a stand-alone park, the waterfront plaza ties together a number of assets. The Weber Point Outdoor Events Center opened to significant opposition two years ago. The concept of spending $8 million on a large amphitheater in a gritty downtown that seemed to have more immediate needs was not universally popular. However, concerts and festivals soon began attracting thousands of people. "It's been better received than the business community thought it would be," said Viall, of the downtown alliance. Next up is renovation of the Stockton Hotel, which is on the National Register of Historic Places, to an office and retail building. The city plans to lease office space in the hotel when refurbishing is complete. Next door will be an 18-screen movie theater. Tying all of the projects together is the waterfront plaza. The city assembled the property for the cinema and sold it to a developer for $1 because city officials wanted a larger facility than the market would appear to justify, Pinkerton said. To protect the investment, the city implemented zoning that blocked new cinemas of six or more screens elsewhere in town. Like many cities, Stockton undertook numerous downtown planning efforts during the last four decades. And, also like many cities, the city implemented few of the ideas. But things have changed for the better during the last few years, at least partly because of City Council commitment to downtown. The new plaza has helped spur interest in additional downtown and waterfront-related construction. Developers from the Bay Area, who have traditionally ignored Stockton, have been purchasing property, Walker said. Since the downtown alliance was created 3 1/2 years ago, about 125 businesses have opened downtown - four times as many as have closed or moved, according to Viall. Approximately 800 white-collar workers, half in the private sector, have been added to the downtown professional work force of 19,000 people, he said. "A lot of things that people have been talking about for the past 20 to 25 years are starting to happen," Viall said. "We still have a long ways to go, but a lot has happened in the last two to three years that we could only dream of four years ago." Contacts: Steve Pinkerton and Kitty Walker, Stockton Redevelopment Agency, (209) 937-8811. Thomas Mix, Environmental Protection Agency, Region 9, (415) 744-2378. Tom Viall, Downtown Stockton Alliance, (209) 464-5246. City of Stockton website for waterfront square: www.ci.stockton.ca.us/pages/decarlisq.htm

A state appellate court that ordered preparation of an environmental impact report on a Metropolitan Water Agency habitat conservation project has ruled that MWD cannot slice the project into smaller pieces and proceed without an EIR. The Fourth District Court of Appeal said MWD and Riverside County Superior Court Judge Gloria Trask — who issued a writ of mandate following the earlier Fourth District decision — misread the first ruling. "The effect of the trial court decision is to allow the entire project (with the single exception of mitigation credits for the take of certain state-listed species) to proceed without any environmental review whatsoever," Justice Thomas Hollenhorst wrote for the unanimous three-judge panel of the Fourth District, Division Two. Michelle Ouellette, attorney for the Riverside County Habitat Conservation Agency, the real party in interest, said the court appeared to be urging the sides to settle their dispute. "You don't publish something like this, without any precedential value, unless you're trying to send a message," Ouellette said. Lawyers for the Audubon Society could not be reached for comment. The MWD, the U.S. Fish & Wildlife Service, the state Department of Fish & Game, and the Riverside County Habitat Conservation Agency jointly prepared the Lake Mathews Multiple Species Habitat Conservation Plan and Natural Communities Conservation Plan. The plan — which is the "project" for CEQA purposes — covers 6,000 acres owned by MWD around Lake Mathews, and it creates a 5,110-acre multi-species reserve. The plan also is intended to serve as a basis for "incidental take" permits for six endangered species and dozens of target species. The reserve would act as a mitigation bank for MWD and for developers from all over Southern California. For the plan, MWD provided a detailed mitigated negative declaration. In 1999, the Fourth District ruled that the San Bernardino Valley Audubon Society had made a fair argument that the project would have a significant effect on endangered, threatened and other plant and animal species and, therefore, an EIR was required. The court said the plan provided a "blank check" for developers wanting to build on habitat for endangered species — even though state officials maintained that development projects that relied on the mitigation bank would need their own environmental reviews. San Bernardino Valley Audubon Society v. Metropolitan Water Dist., (1999) 71 Cal. App. 4th 382 (see CP&DR Legal Digest, May 1999). The appellate court then sent the case back to Judge Trask, who issued a peremptory writ of mandate ordering MWD to set aside the mitigated negative declaration. The writ also prevented the DFG from using the reserve to issue mitigation credits to offset the take of state-listed species. The Audubon Society then asked for reconsideration, arguing that MWD was going ahead with all parts of the project except the issuance of mitigation credits for taking rare species. Judge Trask stuck by the earlier writ, but she was again reversed by the Fourth District. On appeal, MWD argued that the mitigation banking was separate and distinct from other parts of the project. The agency contended that Public Resources Code § 21168.9 allowed Judge Trask to separate parts of the project and issue an order affecting only those specific project activities that are out of compliance with CEQA. But the Fourth District said no. The MWD could either prepare an EIR for the whole project, or abandon the project. And MWD could not argue severability on appeal, because Judge Trask did not use § 21168.9 as a basis for limiting her order. " he trial court did not consider whether the mitigation bank was severable, it did not consider whether severance would prejudice full compliance with CEQA requirements, and it did not find that the rest of the project was or was not in compliance with CEQA," Justice Hollenhorst wrote. The MWD "was us to make these findings for them … ." The Audubon Society argued that the project's 17 discretionary actions were based on the mitigated negative declaration, and the appellate court should block all discretionary actions based on the voided environmental document. But the Fourth District declined to take that route. "However," Hollenhorst wrote, "we do agree with Audubon that the primary defect in the trial court's judgment and peremptory writ is its failure to require CEQA compliance. In other words, the trial court invalidated only one part of the project, the issuance of mitigation credits for the take of certain state-listed species, without requiring the completion of an EIR for the project." "Despite our prior determination that a full EIR was required for the project, the trial court's judgment and writ did not specifically require CEQA compliance for the project," the court held. The court remanded the case back to Judge Trask. The Case: San Bernardino Valley Audubon Society v. Metropolitan Water District, No. E027043, 01 C.D.O.S. 4812, 2001 DJDAR 5839. Filed June 8, 2001. The Lawyers: For the Audubon Society: Raymond W. Johnson, Johnson & Sedlack, (909) 506-9925. For MWD: Norman Flette, deputy general counsel, (213) 217-6240, and John Clairday, deputy general counsel (213) 217-6314. For Riverside County Habitat Conservation Agency: Michelle Ouellette, Best, Best & Krieger, (909) 686-1450.

Commuter rail has a perception problem. If everybody wants to live near to a train, nobody wants to live directly on the line. Trains are dangerous, noisy, kick up dust and push down the price of homes bordering the rails — or so we believe. Fear and misunderstanding of the impacts of commuter rail, in fact, have led to some very volatile politics among homeowners, and that, in turn, has led to some unfortunate planning decisions. In Los Angeles, perhaps the world capital of misinformation about light rail, homeowners frightened in the 1980s by the advent of the Metro Rail subway system prevailed on U.S. Rep. Henry Waxman (D-Los Angeles) to insert language into an appropriations bill outlawing the construction of the train down Wilshire Boulevard, the city's most important business and cultural corridor. (The actual wording of the bill mentions that trains could not be built near pockets of methane gas, which is nonsense, since the train was re-routed to an area that was equally gassy.) A more recent example of train-fear occurred in the San Fernando Valley, where a group of homeowners have challenged the routing of Metro Rail down Chandler Boulevard — the historic route of the Red Car trolley line — ostensibly because the train would disturb Sabbath-observant worshippers. For some reason, their prayers are not disturbed by the constant flow of sport utility vehicles, trucks and buses down the same street, with the attendant noise, dust and greenhouse gases. The experience of the City of Mountain View, which has created four residential neighborhoods near rail lines, suggests that the fear of the train is overblown. Perhaps the most compelling example can be found at the Whisman Station area, where two home builders developed a residential subdivision of 503 units on a former industrial site with a light-rail line running smack dab down the middle. Residents can easily walk to the station for a train that carries them eight miles to downtown San Jose, where they can catch trains headed elsewhere across the city. Whisman Station is a textbook example of urban infill. Hemmed in by three major arterials, the site was a 75-acre industrial campus owned by GTE. In 1994, GTE sold about 46 acres to a pair of homebuilders, including KB Homes (formerly Kaufman & Broad Home Corporation, the largest homebuilder in the West) and Castle Group of San Mateo. The master plan, designed by Richard Frisbie of San Mateo, is the result of 60 public meetings. In the beginning, city officials envisioned hiding the train tracks behind a thick sward of green, with housing built along the outer edges of the site. Slowly, the current plan emerged, with several different housing types — attached town homes, small-lot single-family, and medium-small lot single-family — arranged around a pair of two small public parks. In this version, the housing is very close to the rail line; some of the houses are as close as 20 feet from the tracks, but they are at least partially insulated by a sound wall. Robert Freed, general manager of KB Home for the company's South Bay and North Bay divisions, is quick to point out that housing, not transit, was the selling point. But if anyone had qualms about living near the light rail, the overwhelming demand for housing in the region helped them overlook it. The new subdivisions sold out very quickly. The town homes were priced from about $225,000 to $350,000 while the single-family houses sold from the mid-$300,000s to the mid-$400,000s. Demand for the units was so high, in fact, "we had lotteries on all the new releases," Freed said. In other words, this is not an avant-garde subdivision to be populated by urban pioneers. This is a more-or-less conventional subdivision, built by a conventional commercial builder, that happens to have a train running through it. The relationship between the railroad and the neighborhood is not perfect, according to Freed. His chief complaint about the train is that the train whistle, which blows when the train is within 100 feet of a major road crossing, is too loud for a residential neighborhood. "Frankly, some railroads could do a better job adjusting their crossing rules," he said. Notwithstanding those problems, KB Homes is currently developing several additional subdivisions near rail stations in San Jose. All this good news needs some qualifiers, however. The Tasman Line of the Valley Light Rail system is a smallish, trolley-style train that runs comparatively slowly on newly laid steel tracks, so the system is very quiet. Major high-speed lines, such as BART or Caltrain, are noisier. And, the acceptability of homes near transit in Mountain View may not be typical of California because the demand for any housing is so extreme in Silicon Valley. Some homebuyers might be willing to tolerate conditions in Silicon Valley they would shun in other locations. That said, the experience in Mountain View suggests that train-fear on the part of homeowners is overblown. The Whisman Station experience seems to be a happy one; Frisbie, who visited the site on the day I interviewed him, reported that neighbors are "very pleased" with the neighborhood, and an executive officer of Castle Group, the home builder, lives in the area. The message seems to be that middle-class homeowners will tolerate rail and, conversely, that commuter rail has a place in conventional housing subdivisions as well as in high-density downtown areas. When several more projects with comparable success in building near rail, the documentation will then exist to reassure those livid homeowners at public meetings that rail will not endanger their property values, after all. And when we fix that problem with the whistle, the train will not disturb the tranquillity of the Sabbath, either.

The Cadiz Valley is an unlikely spot for an agricultural empire. A windswept Mojave Desert outpost best known for its spectacular sand dunes and dry lake beds, the valley receives only about 4 inches of rain a year and is seared by 120-degree temperatures during the summer. The nearby hamlet of Bagdad qualifies as one of the continent's driest spots, having once gone without recorded rainfall for 767 days. Left to its own devices, the landscape around Cadiz would support only such hardy vegetation as creosote bush and cactus. Instead, the Cadiz Valley sprouts luxuriant rows of oranges, lemons and table grapes. The combination of corporate muscle and geological accident that made this botanical peculiarity possible also may open a new era in California water development, one that holds either great promise or environmental peril, depending on which set of experts you believe. Located roughly midway between Mojave National Preserve to the north and Joshua Tree National Park to the south, Cadiz lies just off historic Route 66. It once served as a stop on the Atchison, Topeka and Santa Fe Railroad's main line between Arizona and Los Angeles. The rail stop also gives its name to Cadiz Inc., a publicly held company established in 1983 that owns about 37,000 acres in the remote Cadiz and Fenner valleys of eastern San Bernardino County. The company also has 21,000 acres of prime farmland in the San Joaquin and Coachella valleys. Through its wholly owned subsidiary, Sun World International, Cadiz is one of California's leading agribusiness companies and one of the nation's largest growers and marketers of table grapes, stone fruit and specialty crops. However, the company's most valuable asset may be neither crops nor land, but the resource hidden beneath them. The Mojave was not always the dry, forbidding place it seems today. As recently as 15,000 years ago, it was cooler and wetter, its lush valleys dotted by lakes fed by meltwater from glaciers of the most recent ice age. As the climate grew warmer and drier, the lakes evaporated and the rivers either dried up or changed course. Not all that water disappeared, however. Vast quantities had percolated underground and remain trapped there today. Cadiz Inc.'s Mojave land lies atop one such aquifer, an underground oasis the company estimates may hold 20 million acre-feet of water (an acre-foot, 325,900 gallons, is about what two Southern California families consume in a year). Conveniently, the aquifer lies only 35 miles from the Metropolitan Water District's (MWD) Colorado River aqueduct, a 242-mile-long channel that delivers more than half the water the agency wholesales to 26 member districts serving 17 million residents of coastal Southern California. The aqueduct these days is filled to its capacity of 1.3 million acre-feet annually. It will not be long, however, before the aqueduct carries about half that much. For decades, California has been taking more than its legal entitlement of Colorado River water, with MWD the primary beneficiary of the state's diversion of "surplus" flows unclaimed by Nevada and Arizona. But under an agreement brokered earlier this year by the federal government among users of the river, MWD has until 2015 to figure out how to cope with the loss of about 600,000 acre-feet of Colorado water annually. Underground storage is a critical component of MWD's strategy. It delivers Colorado River water for storage in aquifers belonging to the Coachella Valley Water District and Desert Water agency in return for their State Water Project entitlements. The Met also has an agreement with the Central Arizona Water Conservation District to store surplus water from Lake Mead in groundwater basins during wet years. In dry times, Arizona will pump the groundwater while MWD uses a portion of Arizona's Colorado River entitlement to keep the aqueduct to Southern California full. At first glance, the 50-year agreement signed earlier this year between MWD and Cadiz Inc. seems similar to the MWD strategies outlined above. The contract allows MWD to store up 1 million acre-feet of Colorado River water at any one time in the aquifer beneath Cadiz's desert property, and to withdraw up to 150,000 acre-feet a year. The agency can undertake this store-and-pump scenario as often as it wants. The MWD also has the right to buy 1.5 million acre-feet of "indigenous water" — water that has been deposited in the aquifer by natural means — over the life of the contract. The motivation for Cadiz is clear — the company is not making money from farming, having reported net losses of $22.5 million last year and $8.6 million in 1999. It could make as much as $500 million from the deal with MWD. The Met's motivation also is clear, given projected population increases in its service area and the impending reduction of Colorado River water. Environmental groups, however, fear that the quest for profit and the intensity of urban demand will produce irresistible pressure to maximize pumping regardless of its impacts on the Mojave's fragile ecosystem. By arranging to withdraw more than they have deposited, MWD and Cadiz have raised the possibility of widespread harm in an arid environment where groundwater-fed springs and seeps are crucial to rare plants and wildlife, such as bighorn sheep and desert tortoises. A drop in the water table — certain to occur unless natural recharge from rain and snow equals the "indigenous water" withdrawal — could dry up those critical sources, some of them inside federally protected wilderness areas in Mojave National Preserve. The Sierra Club, the National Parks Conservation Association (NPCA) and other groups have threatened litigation. Experts hired by Cadiz and MWD say the natural recharge rate is sufficient in the aquifer's 1,300-square-mile watershed to offset the proposed pumping. Scientists for the U.S. Geological Survey disagree, estimating that Cadiz and MWD will pump up to 25 times as much as can be replaced by precipitation each year. If the USGS experts are right, pumping could produce another unhappy side effect. Two "dry" lake beds nearby are actually kept damp by water rising to the surface from underground. If the water table falls, the lakes truly will dry out, producing vast dust storms of the kind experienced at Owens Lake on the eastern side of the Sierra (see CP&DR Environment Watch, September 2000). Cadiz and MWD have pledged to construct an elaborate monitoring system with sensors and wells to track groundwater levels, providing what their experts say will be ample warning if the project begins depleting the aquifer. What is not clear, however, is what would happen if those warning bells ring. Once Cadiz and MWD have invested hundreds of millions of dollars in pipelines, pumps and wells, and have committed thousands of Southern California households to water from the Cadiz aquifer, it seems unlikely that a few thirsty sheep and tortoises will shut down the water delivery. Contacts: Fiona Hutton, Cadiz Inc., (310) 899-4700. Jack Safely, MWD, (213) 217-6981. Steven Krefting, NPCA, (510) 839-9922. Elden Hughes, Sierra Club, (562) 941-5306.

A jury's award of $3 million to a Desert Hot Springs developer who sued the city for violating the Fair Housing Act has been reinstated by the U.S. Ninth Circuit Court of Appeals. District Court Judge Consuelo Marshall had ruled that the $3 million award was excessive, so she ordered a new trial on damages. However, the Ninth Circuit ruled that Marshall abused her discretion and ordered her to reinstate the original jury verdict. The Ninth Circuit also overturned Judge Marshall's decision to deny the developer's request for an injunction ordering the City of Desert Hot Springs not to violate the Fair Housing Act in the future. In 1990, Silver Sage Partnership signed an agreement to purchase the Silver Sage Mobile Home Park in Desert Hot Springs for low-income housing. The partnership initially sought to use county bonds to finance the project, but the city would not consent. The partnership then went to the state and received approval for $8.2 million in tax credits and a $4.2 million, 55-year mortgage from the Department of Housing and Community Development. However, the loan triggered Article 34 of the state constitution, which requires voter approval of low-rent housing projects that are developed or acquired by a public body. In December 1990, the City Council voted to deny Article 34 approval. The developer then sued in both state and federal court. Eventually, a state appellate court ruled in an unpublished opinion that a city council cannot block an Article 34 election, as the Desert Hot Springs council had. But the partnership did not pursue a ballot measure because the mortgage was no longer available. In federal court, the partnership alleged that the city's actions to block the project violated the Fair Housing Act. A jury agreed and awarded the partnership $3 million in damages. After the city filed a motion for a new trial, Judge Marshall ruled the jury's verdict was "grossly excessive." Using various calculations, Marshall concluded the partnership was entitled to only $388,000. When the partnership refused to accept the lesser amount, Marshall ordered a new trial on damages. The second jury awarded the partnership nominal damages. The partnership then appealed the district court's granting of a new trial on damages, the court's denial of an injunction against the city, and the amount of attorneys' fees the court allowed. Judge Marshall had ruled out most of the original $3 million award for multiple reasons: it was based on "speculative" lost profits; it failed to account for anticipated costs and returns; it included losses to individuals who were only marginally involved; it included losses from a potential tax increase; it double-counted the partnership's losses; and the partnership did not attempt to mitigate its losses. The Ninth Circuit ruled that Marshall was wrong. The appeals court held that Marshall improperly determined that the partnership would realize profits only after the entire mortgage was repaid. No evidence supported that conclusion, the Ninth Circuit ruled. " he partnership would receive some profits in any year that operating income exceeds payment on the loan, including payment for any accrued interest balance," Judge Betty Fletcher wrote for the three-judge panel. As for anticipated costs, Judge Marshall deducted $383,000 from the jury award because she found that the partnership would have had to pay for child-care facilities and temporary classrooms. The Ninth Circuit acknowledged that the developers planned to create a child care facility; however, there was no binding obligation for child care facilities or classrooms. As for marginally affected individuals, Judge Marshall deducted a real estate broker's fee and a syndication fee from the jury's award. The Ninth Circuit said this, too, was improper. The Supreme Court has adopted a "very liberal standing requirement" in Fair Housing Act cases, Fletcher wrote. Thus, the people who lost commissions because the city violated the Fair Housing Act had a right to recover damages for their injuries, the court ruled. The Ninth Circuit also ruled that Judge Marshall misread the partnership's obligation to mitigate its losses. Marshall cited a feasibility study conducted by one of the partners that concluded the mobile home park could be sold for $1.4 million after it was fully rented. So she deducted $1.4 million from the damages. "The court provided no legal authority to support the proposition that a party harmed by another's violation of the Fair Housing Act has a duty to mitigate its damages," Fletcher wrote. Moreover, it was unreasonable to assume the partnership could even purchase the property without the mortgage from HCD, which was no longer available, the court ruled. The appellate court did not even consider the double-counting issues because it concluded the evidence supported damages of $3.1 million — even more than the jury awarded. As for the injunction, the Ninth Circuit ordered Judge Marshall to reconsider her denial. Marshall ruled that the partnership must prove "a reasonable likelihood of future violations of the Fair Housing Act." But the partnership argued that Marshall improperly reversed the burden of persuasion. The Ninth Circuit appeared to agree. Noted Fletcher, "We have held that where a defendant has violated a civil rights statute, we will presume that the plaintiff has suffered irreparable injury from the fact of the defendant's violation." The Ninth Circuit also directed the district court to reconsider attorneys' fees — which had been awarded to the partnership in the amount of $57,000 — in light of the reinstated jury verdict. The Case: Silver Sage Partners, Ltd., v. City of Desert Hot Springs, Nos. 99-56917, 99-56919, 99-56920, 01 C.D.O.S. 4446. Filed June 1, 2001. The Lawyers: For Silver Sage: William J. Davis, Davis & Company, (213) 253-5939. For the city: Kevin Patrick McVerry, Graves, Roberson & Bourassa, (805) 498-7119.