The City of Los Angeles's general plan framework and accompanying environmental impact report have survived most aspects of a legal challenge. The Second District Court of Appeal found the EIR acceptable but rejected the city's findings regarding traffic impacts, remanding the case to the trial court. The unanimous three-judge appellate panel upheld the EIR's discussion of alternatives, water resources analysis and housing policies. Assistant City Attorney Susan Pfann said city officials were happy not to have to readdress those issues and believed they could move forward quickly, depending on the remanded proceedings. Pfann said officials feel like they only narrowly lost the case. The attorney for the Federation of Hillside and Canyon Associations, which filed the lawsuit, declined to comment. In July 1994, Los Angeles officials notified the public that they were preparing a general plan framework (GPF) and a draft EIR. Six months later, the city completed the two documents and invited public comment. The general plan framework was intended to guide future amendments of the 35 (now 37) community plans that compose the city's general plan. It addressed land use, housing, infrastructure, transportation and other elements. Because anticipated growth would severely impair circulation, the framework recommended several programs, including a Transportation Improvement Mitigation Plan (TIMP) and a new circulation element. The draft EIR stated that the mitigation measures would reduce the cumulative significant effects on transportation "to the extent feasible." The city completed the TIMP in February 1995. The document contained proposals that would cost $12 billion over 20 years, such as building roads, adding rail and bus lines, encouraging greater use of public transit and telecommuting. The TIMP was available to the public, but there was no public notice and the draft EIR was not recirculated. After public hearings, the city produced a final EIR in June 1996 and an amended general plan framework in July of that year. Both documents relied heavily on the TIMP mitigation measures. The city also prepared a statement of overriding considerations that said transportation impacts would be significant and unavoidable. The City Council approved the final EIR, the statement of overriding considerations and the framework and in December 1996. The Federation, the city's most powerful homeowners' organization, sued, challenging the EIR and the city's failure to recirculate the draft EIR after the TIMP was completed. Los Angeles Superior Court Judge Daniel Yaffe ruled the city was required to circulate the TIMP for public comment but rejected other challenges to the EIR. On appeal, the Federation argued that there was insufficient evidence to support findings that the mitigation measures will reduce significant effects on transportation, and that there was insufficient evidence that water resources would be adequate. The Federation also contended the EIR did not adequately address feasible growth alternatives or the impact of population growth. The city, which also appealed, argued that it did not need to circulate the TIMP. As to transportation, the Federation latched onto statements in the TIMP that indicated the city did not have enough money to carry out mitigations. The city defended its plan and did not rely on the overriding considerations it adopted. On this point, the court agreed with the Federation. "Although the city adopted the mitigation measures, it did not require that they be implemented as a condition of the development allowed under the GPF and made no provision to ensure that they will actually be implemented or ‘fully enforceable,'" Justice Walter Croskey wrote. The court suggested the city may comply with the California Environmental Quality Act by amending the framework to ensure mitigations are carried out as a condition of development, by restricting development, or by making a finding of overriding consideration regarding significant traffic impacts. In all other aspects, the appellate court sided with the city. In addressing water, the EIR projected an increase in both demand and supply, the latter based on water reclamation programs and increased groundwater pumping. The Federation argued that certain figures were inconsistent but proved no city error, the court held. As for alternative, the Federation challenged the range of scenarios the city presented. There were five: a growth moratorium; continued development under existing plans; a transit-centered growth plan; continued development based on Southern California Association of Governments' projections; and building based on the general plan framework but without its land use management policies. The appellate court called the alternatives "a meaningful basis for comparison with the project." Croskey wrote, "Petitioners must show that the alternatives are manifestly unreasonable and that they do not contribute to a reasonable range of alternatives. Since they cite no evidence or meaningful legal authority and offer no reasoned argument to so demonstrate, we reject their challenges to these alternatives." The court also upheld the city's population growth analysis against challenges based on employment expansion. The question of recirculating the documents was moot because the city had since circulated the TIMP, the court ruled. Pfann, the city's attorney, said the lawsuit was only delaying transportation improvements. "We look upon this general plan as not something that is causing these impacts, but as something that is mitigating them. It's a growth-control plan," she said. The Case: Federation of Hillside and Canyon Associations v. City of Los Angeles, No. B126659, 00 C.D.O.S. 8054, 2000 Daily Journal D.A.R. 10651, filed September 28, 2000. The Lawyers: For the Federation: Lawrence Teeter, (213) 387-4512. For the city: Susan Pfann, assistant city attorney, (213) 485-5416.

The First District Court of Appeal has cleared the way for Oakland Mayor Jerry Brown to participate in redevelopment decisions in neighborhoods where he owns property. In overturning a Fair Political Practices Commission ruling, the court held that Oakland's City Charter provides a loophole in state conflict-of-interest laws by requiring the mayor's participation in redevelopment activities. Brown championed the state's conflict of interest law, the Political Reform Act of 1974 (Gov. Code §81000), when he was secretary of state. But as mayor, Brown argued that his participation was "legally required" in a redevelopment project area near his home and two investment properties. The controversy has roots in the November 1998 election, when Oakland voters approved Measure X. The Brown-backed initiative amended the city charter to establish the mayor as head of the executive branch of city government, removing him from the City Council. Measure X also made the mayor the chief executive officer of the Redevelopment Agency. Armed with new powers, Brown became the leader of the Lower Broadway Project, negotiating with the county, landowners, lawyers and developers. He directed the city manager and city staff to revise zoning standards, and he lobbied city councilmembers regarding development strategies. However, Brown owns three parcels, including his primary residence, in the Central District Redevelopment Project Area. His real estate is within 500 to 1,500 feet of the Lower Broadway Project. Brown acknowledged that his property's proximity to the Lower Broadway Project posed a conflict under the Political Reform Act. But, citing Affordable Housing Alliance v. Feinstein, (1986) 179 Cal.App.3d 484, Brown contended his participation in the Lower Broadway project was required by the revised city charter because there is no other source of decision making regarding economic development within the executive branch. The FPPC disagreed. Earlier this year, the commission determined that the "rule of legally required participation" did not apply because the city charter broadly authorized the city manager to administer affairs of the city. The FPPC held that Feinstein did not apply. In that case, then-San Francisco Mayor Dianne Feinstein was allowed to exercise her veto power over a San Francisco rent control ordinance even though she owned rental property. The FPPC said that San Francisco's city charter required the mayor — and no one else — to either sign or veto all legislation. But in Oakland, the city manager or even the vice-mayor can perform the mayor's functions, the FPPC held. In overturning the FPPC, the appellate court held that the Brown matter was a closer call than Feinstein, because Brown sought a far wider exemption to conflict of interest laws and because the Oakland city charter assigns authority to the city manager. The court even called the FPPC conclusion "an understandable one." Still, in reviewing the history of Measure X, which sought to improve government by overhauling the system, the court held that the FPPC's interpretation was flawed. Measure X gave the mayor specific powers to propose legislation, call special City Council meetings, break council deadlocks and effectively veto legislation, the court held. "These are substantial legislative functions and the mayor is the only elected official in Oakland who can perform them (except for proposing legislation, which any council member may do). Particularly in the area of economic redevelopment, which the charter encourages the mayor to undertake, the ability to propose plans for the council's approval is a crucial first step in a complicated and difficult process, and one for which the mayor is uniquely qualified since he is the official in charge of carrying out the plans," Justice Joanne Parrilli wrote. "For purposes of the Lower Broadway Project, the FPPC's opinion would prohibit the mayor from even attempting to act as the chief executive promised by Measure X," Parrilli continued. "City government would effectively resume the power structure that existed under the former charter, which vested the city manager with broad administrative authority and prevented the mayor or the city council from interfering with the city manager's exercise of that authority. Such a result is obviously inconsistent with the charter in its present form, and with the will of the voters." Attorneys for the FPPC warned that overturning the commission's decision would "open the floodgates to other exception claims." But the court noted that the "strong mayor" form of government is rare in California and concluded, " e are skeptical that any such flood is imminent." The Case: Jerry Brown v. Fair Political Practices Commission, No. A091305, 00 C.D.O.S. 8391, 2000 Daily Journal 11157, filed October 12, 2000. The Lawyers: For Brown: Lowell Finley, (415) 421-7151. For the FPPC, Kathleen Gnekow, general counsel, (916) 323-1937

With affordable housing ranking as a major issue in nearly all of California, the Davis administration and the Legislature responded this year with a gigantic increase in funding for housing programs. However, they did not adopt the significant policy changes supported by the building industry and some housing advocates, and the governor even vetoed one of the few important housing bills approved by lawmakers. Housing programs will receive about $570 million of this year's state budget — up from about $60 million the previous year, and from almost nothing during the Wilson and Deukmejian administrations. Most of the money is in the form of one-time allocations and much is targeted at affordable rentals for low-income families. Farmworkers in need of decent housing were a priority, as were first-time homebuyers with low and very-low incomes. (See accompanying chart on Page 15.) "I think this is a very important first step, and this is an immediate step because the money is available now," Housing and Community Development Director Julie Bornstein said. "We think it can have a pretty significant impact." Marc Brown, co-director of the California Housing Law Project, said the fact that professionals and businesses are now worried about the effects of high housing costs forced state leaders to act. "I think it's a culmination of the housing crisis reaching the middle class," said Brown, a longtime activist for low-income housing who cheered the spending increases. "It's a culmination of the business community seeing how the housing crisis can impede or slow business growth. … I've always said that until the business community starts taking this seriously, we're going to be in the wilderness as far as housing policy is concerned." However, many business leaders contend the state's housing policy remains in the wilderness. "You cannot subsidize your way out of this dilemma," said Allan Zaremberg, president of the California Chamber of Commerce. Zaremberg and other members of the Job-Center Housing Coalition (a rapidly growing collection of business and development interests, labor, housing advocates and poverty groups) urged three major policy changes during the recently completed legislative session: reform of construction defect liability, environmental regulatory relief, and changes to the way local government is financed. State lawmakers approved none of those policy changes, and approved few of the many "smart growth" proposals aimed at regional approaches to the housing crisis. The Numbers Get Bigger Detractors say the new and expanded housing programs will provide only 10,000 to 15,000 new and refurbished units. Noting that the state's money is intended to provide partial funding, Bornstein pegged the number of new and rehabilitated units at 50,000 to 75,000. Either way, the housing gap would still grow. Several recent reports have concluded that California needs to build about 100,000 more housing units than it currently builds every year simply to keep pace with population growth. From 1990 through 1999, residential building permits averaged 110,000 units annually — roughly half the number of units permitted during the 1970s and 1980s, according to the California Budget Project, an independent research and policy analysis organization. Moreover, permits for multi-family residences dropped by 70% during the 1990s, at least partly because of "NIMBYism," said Jean Ross, the Budget Project's executive director. Earlier this year, the Budget Project identified the immediate need for 500,000 affordable rentals in metropolitan areas of California. Indeed, a shortage of rentals combined with rapid job growth raised the average monthly rent for a two-bedroom apartment in the Bay Area to more than $2,000 in June, up 28% in one year, according to a recent UCLA Anderson Forecast. Ross called the state appropriations a good first step because they will help households left out of the private market, and because the spending is important symbolically after so many years of minimal funding. "Clearly, a problem that has been years in the making can't be solved with a single year's spending," Ross said. But Timothy Coyle, senior vice president of the California Building Industry Association and a former HCD director under Gov. Wilson, said no amount of government spending will remedy the problem. "The magnitude of the housing problem in California demands more than just funding," Coyle said. "Home builders think you've got to look at what is contributing to a huge supply shortfall." Coyle lamented the defeat of AB 2343 (Ducheny). The bill would have exempted from the California Environmental Quality Act certain infill housing developments of up to 200 units in urban areas. The bill never made it out of the Assembly Natural Resources Committee after some environmental groups and environmental justice advocates decried the proposed CEQA loophole for projects that could bring hundreds of people and cars to already crowded areas. But Coyle said, "The California Environmental Quality Act was never meant to be a legal tool for NIMBYs to block houses." Opposition to infill drives exurban development, he said. Bob Johnston, a professor in the UC Davis Department of Environmental Science and Policy, likened the state's housing allocations to "trying to drain the ocean with a spoon. … The fact of the matter is, we're way behind in California," he said Johnston said lawmakers should put teeth into the housing fair share law. Right now, there is neither a big enough hammer nor sweet enough carrot to get cities and counties to provide the housing specified by regional planning bodies such as the Southern California Association of Governments and the Association of Bay Area Governments. The Housing and Community Development department has always shied away from forcing apartments on communities. But the state could withhold funding, such as highway money, if a city or county refuses to approve necessary housing. Or the state could offer incentives, such as distributing sales tax on a per capita basis or letting cities and counties keep a larger portion of property tax from residential developments, he said. "We need structural change in California. The incentives are backwards," Johnston said. The Structure Remains There has been no shortage of reports describing a government financing system that favors retail development over all other land uses. A conference committee established to follow up on recommendations of the Assembly Speaker's Commission on State and Local Government Finance made little progress despite — or maybe because of — weekly meetings attended by dozens of interest groups. The conference committee failed to reach a consensus on what problems exist, and eventually settled on doling out $212 million in one-time funds to local governments. The Legislature did pass SB 1621 (Alarcon), which addressed some of the housing element issues Johnston addressed. The bill would have limited local governments' ability to declare moratoria on multi-family housing development. It also would have required cities and counties to zone enough land to meet the jurisdiction's fair-share housing needs in all income categories. Not surprisingly, the League of California Cities and California State Association of Counties opposed the bill, which they called an onerous mandate that would constrain local flexibility to deal with local land-use issues. In this case, Gov. Davis sided with local government. "Providing more housing is a critical need. I am reluctant, however, to use the coercive power of state government to further impinge on the rights of local communities to make their own best decisions on land use matters," Davis said in his veto message. He also pointed to the huge increase in housing allocations. Bornstein, however, said the budget augmentations do get at some of the very issues Coyle and Johnston identified. The $110 million Jobs-Housing Balance Program provides financial incentives for cities and counties that approve more housing, especially high-density housing, projects that use existing infrastructure and developments near transit stations, she said. The department's largest program, the $188 million Multifamily Housing Program, gives infill projects top priority, she said. Also, money is available for adaptive reuse of commercial structures and for mixed-use projects. And the department stands ready to provide research and presentations to support local officials confronted with opposition to multi-family housing projects. "This is certainly not the last step. It's not even a middle stop, but it is a first step. Our task now is to make sure the developers out there, profit and nonprofit, know about the resources that are available and see us as a business-friendly agency," Bornstein said. Get ‘Em Next Year No one expects the housing issue to go away. High housing prices continue to generate news coverage almost everywhere in the state. About 30 brand new state lawmakers will arrive in Sacramento, many of them fresh from making land use decisions at the local government level. Bornstein conceded that the way local government zones land and how local government is funded deserve a hard look. "Under our current revenue structure, there is an incentive against housing," she lamented. The chamber's Zaremberg and other members of the Job-Center Housing Coalition vow to continue advocating for local government finance changes, regulatory relief and construct defect reform. That last issue is critical, developers say, because liability concerns make it nearly impossible to get financing for condominiums and townhouses, which are important under just about everyone's definition of "smart growth." While complaining about the influence of trial lawyers and "entrenched environmental interests" in Sacramento, the CBIA's Coyle said he grows more optimistic that state leaders will tackle the issues. Brown, of the Housing Law Project, said recent successes and a receptive Capitol have generated momentum for meaningful changes. Senate President Pro Tem John Burton (D-San Francisco) and Assembly Speaker Robert Hertzberg (D-Van Nuys) have carried the flag for housing programs for years, Brown said. He expects some sort of CEQA exemption for infill housing will return for consideration next year. And Brown hopes the Legislature will make some of this year's one-time augmentations an annual part of the state budget. Contacts: Julie Bornstein, Housing and Community Development Director, (916) 445-4775. Marc Brown, California Housing Law Project, (916) 739-6293. Jean Ross, California Budget Project, (916) 444-0500. Allan Zaremberg, California Chamber of Commerce, (916) 444-6670. Timothy Coyle, California Building Industry Association, (916) 443-7933. Bob Johnston, UC Davis Department of Environmental Science and Policy, (530) 752-3015. HCD website: www.hcd.ca.gov

The State of California's 2000-01 budget and various pieces of legislation created several new programs and expanded some existing housing programs under the Department of Housing and Community Development. They new programs include: o Jobs-Housing Balance Improvement Program. $110 million. Covers three areas: — Economic development grants to local agencies in "housing rich" areas to attract new businesses and jobs. — Incentive grants to cities and counties that adopt HCD-approved housing elements by the end of 2001. Grants are based on a jurisdiction's increase in the issuance of residential building permits during 2001 compared to the average of the previous three years, and on approval of multi-family housing, transit-oriented development and infill projects. The money can fund capital projects such as roads, parks, schools, community centers, and police and fire stations. — Urban predevelopment loans to local governments and nonprofit corporations for financing initial costs of constructing, converting, preserving or rehabilitating housing developments near transit stations. o Inter-Regional Partnership (IRP) grants. $5 million. A pilot program that provides funding for certain cities, counties and councils of government in the East Bay and Central Valley to development plans, policies and incentives to improve the jobs-housing balance in a five-county region. (Santa Clara, Alameda, Contra Costa, San Joaquin and Stanislaus counties.) The money is available only for two or more agencies working together, or for a county working with the state. o CalHOME Program. $50 million. Provides grants to local public agencies and nonprofit corporations for first-time homebuyer downpayment assistance, property acquisition and rehabilitation, and self-help mortgage assistance. Loans can also serve as permanent financing for mutual housing and cooperative developments. o Downtown Rebound Program. $25 million. Provides low-cost loans to local public entities, for-profit and nonprofit corporations, and housing cooperatives. The money is available for conversion of vacant or underused commercial and industrial space into housing, with 20% to 40% of units reserved as affordable. Money is also available for residential infill projects, high-density housing near transit stations and other forms of downtown housing development. o Downtown Rebound Planning Grants program. $2.5 million. Provides grants to cities and counties for planning and technical assistance related to infill housing, mixed-use developments, and transit corridor developments. Cities and counties may use the money to update zoning ordinances and general plans. The expanded programs include: o Multi-family housing assistance program. $188 million. Provides low-cost, deferred-payment loans to local public entities, for-profit and nonprofit corporations, and housing cooperatives for construction, rehabilitation or acquisition of, or conversion to, multi-family rental housing. Costs of developing support facilities, such as child care centers, are also eligible. This is the program's second year. o Farmworker Housing Grant Program. $46.5 million. Provides grants to local governments and nonprofit organizations for any construction-related cost in the development of homeowner or rental housing for agricultural workers. The program also has a manufacturing housing component, offers assistance to people displaced by unsafe conditions, and funds developments that provide health services for residents. o Mobilehome Park Resident Ownership Program. $9 million. Provides loans to local public agencies, nonprofits and resident organizations to purchase mobilehome parks and for other efforts to preserve affordable mobilehome parks. o Emergency Housing Assistant Program. $39 million. Provides grants to local governments and nonprofits to construct rehabilitate and renovate homeless shelters. Also funds equipment purchases and voucher programs. o Child Care Facilities Finance Program. $16 million. Provides loans and loan guarantees for child care operators and local public agencies to develop, expand or improve child care facilities.

The largest Bloomingdale's department store outside of New York City is coming to San Francisco thanks to a $27 million loan from the city to the developer. In approving the 1.6-million-square-foot redevelopment project, the San Francisco Board of Supervisors also backed an agreement that requires all retailers in the project except Bloomingdale's not to block labor union organizing. The five-story, 375,000-square-foot Bloomingdale's will anchor the retail, hotel and office project in San Francisco's Yerba Buena district. The project offers the city a number of benefits, according to Bill Carney, the San Francisco Redevelopment Agency's senior project manager for the Yerba Buena Center project area. It will restore the façade of the historic Emporium department store building, which has been mostly vacant since 1996. It will provide 2,300 permanent jobs, and generate $14 million a year in sales, transient occupancy and property taxes for the city, he said. The developer, Forest City Enterprises of Cleveland, will pay $3.5 million in fees for transit improvements, child care facilities, and parking and traffic mitigations. And, after a certain period, 40% of the project's tax increment will go toward affordable housing, twice the state-mandated amount. "It removes what has been for the last half decade a blighting influence on Market Street and Mission Street," Carney said. "It will provide significantly more economic activity than has historically occurred there." The project also provides an important connection between the Moscone Convention Center, which is undergoing an expansion within the 87-acre redevelopment project area, and the nearby downtown district and Union Square retail area, Carney said. David Jones, Forest City project manager, echoed that theme in a prepared statement. "It's a vital piece of a grand puzzle linking two of the city's most popular destinations," he said. City officials agreed to lend Forest City 60% of the tax increment for the first 16 years, or a minimum of $27 million. Forest City must repay the money with interest and the city should be made whole in 33 years, according to officials. The city also deeded to Forest City an alley and amended zoning to allow larger buildings than previously permitted. Although Mayor Willie Brown has pushed the development for years as a cornerstone of downtown, the project itself has been overshadowed of late. Labor organizers demanded the Board of Supervisors not approve the project unless Forest City ensured union organizing rights. Eventually, supervisors approved an accord in which employers within the project with at least 50 workers will be prohibited from interfering with union organizing. The agreement, however, does not cover Bloomingdale's. Also diverting attention is the nearby Mission Bay redevelopment project, for which there was a groundbreaking ceremony on October 23. The mixed-use project on a former rail yard next to the Giants' new baseball stadium entails 6,000 housing units (mostly in 16-story towers), a new University of California San Francisco campus, 5.5 million square feet of office space, a 500-room hotel, and 47 acres of open space and parks. The Mission Bay project, which city officials call the largest waterfront development in the country, is projected eventually to provide 42,000 new jobs and $600 million in revenue. Still, few people seem to doubt the importance of the Bloomingdale's project, partly because it will clean up a few blocks that were not inviting, even when Emporium was open. "I've been troubled by this project, but I've been troubled for years that this building has been standing vacant," Supervisor Sue Bierman told the San Francisco Chronicle. She questioned the height of the buildings but added, "I think on the whole it's better than having this site stay in this deteriorating condition." The plans approved by the Board of Supervisors call for Forest City to restore the first 65 feet of the Emporium building. Forest City will restore the Market Street façade to its early 1900s appearance, with columns, arches and windows that have been damaged or covered over returned to their original appearance. The 102-foot-wide glass and steel dome will be restored and placed atop the new 41-story tower. The rotunda will be restored as a major public space within the buildings, Carney said. While Bloomingdale's will fill much of the overhauled Emporium building, Forest City will development another 500,000 square feet of retail space, much of it replacing warehouses. Above Bloomingdale's will be a nine-screen cinema with seating for 3,000 people. And above that will be a hotel with approximately 300 rooms. Some neighborhood activists and historic preservations complained that Forest City will save only the Emporium's façade and dome while gutting the rest of the building. They also complained about the hotel's height and the financing arrangements. Supervisor Tom Ammiano, who cast the lone vote against the project, said the labor accord did not go far enough. Construction is scheduled to begin around the first of the year, and Bloomingdale's could open in the fall of 2003. Two other projects in the Yerba Buena Center project area are also scheduled to begin at about the same time. One involves a Mexican museum, Jewish museum and public open space; the other is a smaller commercial development. Contacts: Bill Carney, San Francisco Redevelopment Agency, (415) 749-2400. San Francisco Redevelopment Agency website: www.ci.sf.ca.us/sfra Forest City Enterprises, (216) 621-6060. Forest City website: www.fceinc.com

The California Environmental Quality Act does not apply to a city's design review process, the Third District Court of Appeal has held. In a case involving a Border's bookstore in the City of Davis, the court also ruled that the identity of a particular tenant in a retail project that has already undergone CEQA review does not compel further study. And the court held that the city's design review process does not extend to approval of particular tenants. The partially published appellate court opinion is the latest in a string of losses for opponents of the Border's bookstore, which opened last year. Opponents contend that the national chain will crush independent booksellers, of which Davis has many. In 1995, the University of California applied to the city for prezoning of Aggie Village, 10 acres of UC-owned land situated next to downtown but outside the city limits. Following hearings, the city zoned the site for residential and retail development. The city annexed the property in early 1996, relying on UC's environmental impact report for a 1994 long-range development plan that included Aggie Village, and on a negative declaration for Aggie Village in particular. Developer Fulcrum Davis then acquired an option on the property and submitted a design review application for a retail development of about 45,000 square feet in 1997. At this point, Border's had become known as a likely tenant, but city planners said they could not differentiate between one retailer and another. Planners approved the design review application, a decision upheld on appeal by both the Planning Commission and City Council. A group called Friends of Davis then filed a lawsuit seeking a writ of mandate, but Yolo County Superior Court Judge W. Arvid Johnson ruled for the city. On appeal, Friends argued that the city improperly construed its design review ordinance by not extending it to tenant approval. Friends argued that cities have the power to make and enforce local laws not in conflict with general laws, and that CEQA (a general law) mandates the fullest possible protection of the environment. But the unanimous three-judge appellate panel disagreed. "While a city has broad authority over the regulation of land use within its territory, that authority is not unlimited. Where certain uses are permitted, a city cannot arbitrarily exclude others who would employ a similar use," Presiding Justice Arthur Scotland wrote. "While valid zoning regulations may affect competition and have other economic effects, a city does not have carte blanche to exclude a retail merchant that it, or some of its residents, do not like." And, the court held, CEQA cannot be used to force a review of specific tenants. " he Guidelines recognize that CEQA does not enlarge an agency's authority beyond the scope of a particular ordinance, and further recognize the fundamental rule that interpretation of the meaning and scope of a local ordinance is, in the first instance, committed to the local agency," Scotland wrote. Friends argued that the identify of Border's as a tenant did not become known until after the CEQA documents were prepared. The group contended that Border's would force independent bookstores out of business, leading to a general deterioration of downtown, a potential impact that necessitated further environmental review. Again, this argument got nowhere with the appellate panel. The court noted that UC had completed a CEQA review of the project, so the only question was whether additional review was warranted. The court said the only "change" was the identify of Border's as a tenant, and that was not enough to require additional review. Moreover, the court held, Border's impact would be an economic and social one. "CEQA and its implementing guidelines make it clear that social and environmental effects are not to be considered a significant environmental effect and need be considered only to the extent they are relevant to an anticipated physical change in the environment, or on the basis of substantial evidence, are reasonably likely to result in physical change to the environment," Scotland wrote. But Friend's provided no substantial evidence, only "speculative and conjectural" arguments, the court held. The Case: Friends of Davis v. City of Davis, No. C029236, 00 C.D.O.S. 7926, filed August 25, 2000, ordered published September 25, 2000. The Lawyers: For Friends: John Gabrielli, (530) 753-0869. For the city: Harriet Steiner, McDonough, Holland & Allen, (916) 444-3900. For Fulcrum Davis: Whitman Manley, Remy, Thomas & Moose, (916) 443-2745.

The Fourth District Court of Appeal has thrown out an environmental impact report for a proposed San Bernardino County landfill because the EIR did not estimate the volume of groundwater underlying the site. Because the landfill could threaten the groundwater resource, decision-makers needed to know how large the resource is before determining whether the landfill was an acceptable risk, the unanimous three-judge panel held. Although the court threw out the EIR for lacking groundwater information, the court rejected numerous other challenges to the EIR and held that the landfill is compatible with the county's general plan. The lawsuit involved the highly contentious Rail Cycle project (see CP&DR November 1999, March 1999, December 1997) and the politically well-connected Cadiz Land Company. Since the San Bernardino County Board of Supervisors approved the Rail-Cycle landfill in 1995, the district attorney's office has undertaken a major criminal investigation that cost county Planning Director Valerie Pilmer her job and resulted in the indictment of Planning Commissioner Michael Dombrowski on unrelated bribery charges. Joseph Lauricella, a con man who claimed he was hired by Rail Cycle owners to ruin Cadiz, is serving six years in state prison for wiretapping, conspiracy and fraud. A trial of Waste Management Inc. (part of the Rail Cycle partnership) and two Waste Management executives on charges they conspired to destroy Cadiz began in late September — only days after prosecutors filed fresh securities fraud charges against the same defendants. Cadiz, meanwhile, is run by Keith Brackpool, a Brit who has become a water-policy confidant of Gov. Gray Davis. Cadiz has acquired about 26,000 acres of land in the Mojave Desert. The company wants to pump groundwater from that land and sell it to the Metropolitan Water District and the Mojave Water Agency. During wet years, the Met would store Colorado River water in the aquifer beneath the Cadiz property. The Cadiz plan remains only a proposal, but a leaky garbage dump could run the scheme — which explains the lengthy legal battle. In 1991, Rail Cycle (a partnership of Atchison, Topeka & Santa Fe Railway Company and Waste Management, now called WMX Technologies) filed an application for a municipal landfill at a former railroad depot in the desert about 80 miles east of Barstow. The 4,870-acre site, about half of which would be buffer, would accommodate up to 21,000 tons of garbage per day for 60 to 100 years, creating a mound of trash nearly 400 feet tall. Rail cars would deliver garbage to the site. After three years of environmental study, staff review and public hearings, the county Planning Commission recommended the Board of Supervisors certify the EIR and approve the project. In November 1995, the board certified the EIR, and approved a conditional use permit, general plan amendments and a "business agreement" under which Rail Cycle would pay a "business license tax" of $24 million to $30 million annually. (Voters had to approve that tax, but they rejected it in 1996, which appeared to doom the project.) Cadiz filed lawsuits in December 1995, shortly after the Board of Supervisors' vote. Cadiz claimed that its property had been taken without compensation and that it had been deprived of its federal civil rights under 42 U.S.C. §1983. Cadiz also challenged the adequacy of the EIR and the claimed the county's approval of the general plan amendments, rezoning and use permit was improper. Superior Court Judge Carl Davis ruled that the due process claims were not ripe, held that the EIR was adequate under the California Environmental Quality Act (Public Resources Code §21000 et seq.) and said that the county could grant the general plan amendments and conditional use permit. The appellate court did not consider the civil rights claims but did rule on the EIR and the county's project approvals. The court found only one flaw in the lower court's decision, and that regarded the amount of groundwater under the landfill site. "Although the EIR mentions that an aquifer containing potable water underlies the landfill site, and discusses factors such as groundwater recharge, groundwater downgradient, groundwater flow, change to slope of the water table (hydraulic gradient) due to pumping, risk of contamination, overdraft, projected drawdown, groundwater velocity, and cone of depression location, the EIR does not discuss the volume of water contained in the aquifer or the size of the aquifer. Thus, we conclude the EIR's discussion of the environmental setting is not in compliance with CEQA Guidelines §15125," Justice Barton Gaut wrote for the three-judge panel. "An estimate of the volume of groundwater in the aquifer is critical to a well-informed determination of whether the risk of groundwater contamination is worth taking. It would be reasonable to assume that if a large volume of drinking water and/or water suitable for other domestic, industrial and agricultural uses were subject to contamination, the lead agency evaluating the project would be less inclined to approve such a project and the public might vociferously object to the project," Gaut continued. The court ruled that the lack of groundwater volume information made it premature to decide whether the potential for groundwater leakage could be deemed an insignificant impact. But the court upheld all other aspects of the EIR that Cadiz challenged, including reviews of air quality impacts, geologic conditions, and cumulative effects. The court acknowledged that Cadiz's contentions regarding the general plan amendments and use permit were moot because of the EIR ruling, but the court addressed the issues anyway because "if we do not, the issue may be raised in a future appeal, after revision and recertification of the EIR." Cadiz claimed the project was inconsistent with the general plan because it would be an intensive industrial use in an area designated as open space. But the appellate panel disagreed, ruling, " he general plan expressly states that landfills are encompassed within the category of open space land uses." The appellate court also upheld a string of trial court discovery rulings against Cadiz, which wanted to depose Pilmer, Dombrowski and other county officials, Lauricella, several community activists and various project consultants. Cadiz suggested misconduct on the part of Rail Cycle and the county. But the appellate court ruled that some allegations were "ambiguous and evasive" and that Cadiz should have sought other information during administrative proceedings. The Cases: Cadiz Land Company Inc. v. Rail Cycle L.P., No. E024373, and Cadiz Land Company Inc., v. County of San Bernardino, No. E024532, 00 C.D.O.S. 7008, 2000 Daily Journal D.A.R. 9231, filed August 18, 2000. The Lawyers: For Cadiz: John Bowman, Jeffer, Mangels, Butler & Marmaro, (310) 785-5379. For Rail Cycle: Clare Bronowski, Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, (310) 553-3000. For the county: Richard Terzian, LeBoeuf, Lamb, Greene & MacRae, (213) 955-7300.

The City of San Francisco has been dealt setbacks in two cases in which the city attempted to argue that two hotels were not "grandfathered" as tourist hotels and therefore are subject to the city's hotel conversion ordinance because of alleged conversion from residential to tourist use. The two cases appear to have interconnected issues that may need to be resolved later. In the first case, one First District appellate panel concluded that the hotel needed to prove "actual tourist use." In the other, a different First District panel stated that the city's certification of some rooms as tourist hotel rooms was sufficient and proof of actual tourist use was not necessary. In the notorious case of the San Remo Hotel, the First District Court of Appeal, Division Five, remanded the question of whether the hotel was a legal nonconforming use to the trial court for technical reasons. However, the court made it clear that the trial court should find in favor of the hotel owner rather than the city. The owners of the San Remo have been fighting the city's attempt to impose a $567,000 fee under the city's Hotel Conversion Ordinance. The city levied the fee because the owners allegedly converted the hotel from residential to tourist use. In August, the First District ruled that a trial can move forward for an unconstitutional taking. (See CP&DR Legal Digest, September 2000.) In a newly published portion of the case, the court remanded the non-conforming use question back to the trial judge. If the hotel was a legal non-conforming use under the North Beach Neighborhood Commercial District ordinance prior to the 1987 passage of the Hotel Conversion Ordinance, then the fee would presumably not be applicable. The trial judge had ruled on the non-conforming use issue as a matter of law rather than a factual basis, which is why it was remanded. The city argued, among other things, that some rooms were rented for residential use prior to 1987 and therefore tourist use of the entire hotel was illegal. The appellate court saw things differently. "The hotel remained at all relevant times factually and legally a hotel renting to tourists, not a commune, a fraternity house, or any of the other uses specified in the ‘group housing' category," wrote the court: "If appellants were not operating a ‘hotel', then one might wonder why the City always issued to it a use permit as a hotel, collected hotel taxes on its tourist rentals as a tourist hotel, and required a ‘mitigation fee' under the HCO when it was ‘ converted' from a residential ‘hotel' to a tourist ‘hotel.'" In the other case, a different First District panel concluded that the city's certification of hotel rooms as tourist units established their lawful use as tourist hotel rooms and no proof of actual tourist use is required. The Tenderloin Housing Clinic had sued the Astoria Hotel, claiming that the hotel had violated the city's residential hotel conversion ordinances. In order to establish the hotel's lawful status as a tourist hotel, both the city zoning administrator and the trial court required the Astoria to show actual tourist use. But the appellate court disagreed. "The Planning Code does not specify that a use must have ‘actually' existed to be deemed permitted," the court held. "It states that a use must have ‘lawfully' existed." The Cases: San Remo Hotel v. City and County of San Francisco, No. A083530, 2000 Daily Journal D.A.R. 9877, issued August 8, 2000, full publication September 6, 2000. Tenderloin Housing Clinic Inc. v. Astoria Hotel, No. A088494, 00 C.D.O.S. 7003, issued August 18, 2000. The Lawyers: For hotels in both cases: Andrew Zacks, (415) 821-0347 For City and County of San Francisco: Andrew Schwartz, deputy city attorney, (415) 554-4620 For Tenderloin Housing Clinic: Stephen L. Collier, (415) 771-9850.

The shift of $200 million per year away from redevelopment agencies to school districts as part of the state's property tax reallocation beginning in 1992 did not constitute a "reimbursable state mandate," the Third District Court of Appeal has ruled. The ruling clarifies a question that first emerged when redevelopment agencies reluctantly agreed to the shift of funds in 1992. The City of El Monte had filed a test claim on the issue with the Commission on State Mandates. However, the city lost all the way down the line, with the commission, a trial judge, and a three-judge panel of the Third District ruling against the city. The key to the decision was an earlier court ruling concluding that property tax-increment funds, to which redevelopment agencies are entitled under Health & Safety Code Section 33678, are not "proceeds of taxes" subject to the "Gann limit" (Article XIII B of the state constitution), which prohibits major spending increases by local government without a vote. Section 6 of the Gann limit also requires the state to reimburse local governments for state-mandated costs. Wrote Presiding Justice Arthur Scotland for the Third District panel: " redevelopment agency cannot accept the benefits of Health & Safety Code Section 33678 while asserting an entitlement to reimbursement under Article XIIIB, Section 6." Beginning in 1992, the state shifted more than $2 billion annually in property taxes to school districts from other local agencies, including redevelopment agencies. The purpose of this shift was to save the state money, so an adverse ruling in this case certainly would have been ironic. These funds, known technically as the Educational Revenue Augmentation Fund (ERAF), have never been fully restored to local agencies. There was some question about the constitutionality of the redevelopment agency shift, but the agencies reluctantly agreed to the shift because they were under considerable pressure for legislative reform. (Major reform occurred the following year.) On appeal, El Monte made two arguments. First, the city argued that the re-allocation of funds away from redevelopment agencies created a new program or an increased level of service under an existing program for which the state should bear financial responsibility. The court disagreed, noting that the issue was not programming but funding. " efore the enactment of the ERAF legislation, a substantial, although variable, portion of local property tax revenues were utilized for the support of schools. In this respect, a utilization of local property taxes in support of schools and community colleges is not a ‘new program,'" Scotland wrote. In deciding this issue, the Third District compared the redevelopment agency situation to the state's decision to permit counties to charge cities booking fees for arrestees. The ERAF legislation, the court said, "was merely the most recent adjustment in the historical fluidity of the fiscal relationship between local governments and schools." El Monte's second argument had to do with the applicability of Section 6 of the Gann limit to redevelopment agencies. Among other things, the Third District noted that Article XIII B calls for reimbursements only when "the costs in question can be recovered solely from tax revenues." The ERAF legislation did not specify what source of funds redevelopment agencies must use; therefore, the court said, "It follows that the ERAF legislation did not impose costs to a redevelopment agency that can be recovered solely for tax revenues within the meaning of article XIII B …." The Case: City of El Monte v. Commission on State Mandates, No. C025631, 00 C.D.O.S. 7159 Issued July 27, 2000; published August 23, 2000. The Lawyers: For City of El Monte: William D. Ross, (213) 892-1592. For Commission on State Mandates: Gary D. Hori, legal counsel, (916) 324-4014.

Showing the willingness to veto bills for the second year in a row, Gov. Gray Davis rejected land use bills that ranged from high-profile measures to legislation that was nearly off the radar screen. Two project-specific bills that would have aided Indian casino development received vetoes in late September. Davis also rejected bills that would have, among other things, thrown a new obstacle in front of a controversial Ventura County subdivision; encouraged a 1.5 to 1 jobs-housing balance; and shifted the cost of environmental impact reports on incorporations to the state and counties. Davis did sign some land-use legislation, including a bill that allocates $25 million to begin purchasing salt marshes along San Francisco Bay and another bill that allows redevelopment agencies to pool affordable housing funds. The Indian casino bills were AB 2752 (Cardoza) and AB 1066 (Cardenas). The Cardoza bill would have blocked development of the long-planned Gregory Canyon Landfill in San Diego County. Bill supporters said the area is sacred ground to the Pala Band of Mission Indians, while some opponents said the tribe was more concerned about the landfill's close proximity to a planned casino. In his veto message, Davis focused on the project's history. In 1994, county voters amended the county's general plan to approve the landfill's location, and both a trial court and state appellate court upheld the ballot measure's validity. (See CP&DR Legal Digest, January 1999, June 1997.) "While I am sensitive to the concerns raised by the tribe in this case, I am also sensitive to the fact that the San Diego County voters approved the siting of this landfill, as Proposition C, by a 68% countywide vote in 1994," Davis said in his veto message. "I am loath to overturn a vote of the electorate and the decision of two courts of law." The Pala Band said it was devastated by the governor's veto. "If it was next to his church, I don't think he would have vetoed the bill," Pala Secretary Stan McGarr told the Los Angeles Times. The Cardenas bill would have facilitated construction of a Highway 50 interchange to serve a casino proposed by the Shingle Springs Band of Miwok Indians in western El Dorado County. The Shingle Springs Band's property is now landlocked (see CP&DR, July 2000). Davis said the "contractual arrangements" of AB 1066 might have merit, but he disliked lawmaker's "gut and amend" process. "Until the second to last day of the legislative session, this bill related to the display of slot machines at trade shows," Davis noted. Another bill vetoed bill was AB 1758 (Kuehl), which would have hindered the Ahmanson Ranch subdivision, a 3,000 home development approved eight years ago by Ventura County supervisors but which remains tied up in legal and regulatory processes. The bill would have authorized the Department of Fish & Game to grant immediate protection to any plant or animal species thought to be extinct, and required the plant or animal to be left alone while DFG determined the status of the species. Earlier this year, scientists found on Ahmanson Ranch the San Fernando spineflower, which was thought to have been extinct for 50 years. Davis called the bill unnecessary and noted that the San Fernando spineflower is moving though the state's endangered species listing process. Davis also complained that AB 1758 would waive public notice requirements, "possibly disenfranchising those most affected by the adoption of these heightened provisions." Housing legislation generally received a favorable reception in the Capitol's corner office, but Davis did veto a jobs-housing bill endorsed by the Smart Growth Caucus. Senate Bill 1642 (Figueroa) would have required the state and regional councils of government to seek a jobs-housing ratio of 1.5 to 1. Instead, the governor said the Interregional Partnership (IRP) state pilot project and the new Jobs-Housing Balance Improvement Account should be given a chance. The IRP project, which covers five Bay Area and Central Valley counties and numerous cities, provides financial incentives for local agencies that boost housing production (see CP&DR March 2000). The pilot program won approval earlier this year as AB 2864. The Jobs-Housing Balance Improvement Account bill (AB 2054) "cleaned up" AB 2864 by creating a fund for programs to encourage jobs-housing balance and transit-oriented developments. Assembly Tom Torlakson (D-Martinez) carried both bills, which Davis signed. Doesn't Pass the Gray Test The governor also vetoed: o AB 1960 (Machado), which would have split costs for an incorporation EIRs 75% to the state and 25% to the county in cases where incorporation failed. San Fernando Valley secession was behind the bill. Davis said incorporation applicants should be responsible for the expense. o AB 356 (Washington), which would have created an enterprise zone in the City of Compton. Instead, Davis signed SB 511 (Alarcon), which maintains the competitive process for establishing enterprise zones but awards bonus points based on economic need. o AB 2471 (Wayne), which specified information to be included in the Office of Planning and Research's quadrennial report on the state's environmental goals and policies. Davis called the bill's requirements expensive and said they should have been considered in the budget process. The Governor Likes It Davis signed the following bills: o AB 398 (Migden), which allocates money for purchasing Cargill Salt Co. land along San Francisco Bay. The bill specified $30 million, but Davis reduced that amount to $25 million. The bill is a companion to SB 1562 (Burton), which declares that purchase of 19,000 acres of salt flats shall be adequate to mitigate San Francisco Airport expansion into the bay. Davis had not decided on that bill as of press time. o AB 2041 (Dutra),which lets redevelopment agencies pool housing funds under a joint powers authority. The legislation appears to replace a now-expired, and little-used, law that allowed one redevelopment agency to transfer money to a different redevelopment agency. (Last year, for example, the wealthy City of Indian Wells gave $1.5 million in redevelopment funds to the poorer city of Coachella to build affordable homes.) In his signing message, Davis recognized some communities could use the legislation to shirk affordable housing responsibilities. But, he added, "Pooling can provide flexibility to get housing built." o AB 2430 (Wiggins), which extends the sunset date by three years on legislation that allows Napa County to meet 15% of its affordable housing requirements with construction of homes in cities. Bill supporters say a 1990 urban growth boundary initiative and the incorporation of American Canyon hamper the county's ability to meet its regional housing obligation. The Senate refused to approve Wiggins' plan to let the county meet 33% of its share with housing in incorporated areas. o AB 2848 (Firebaugh), which authorizes a lead agency for a transportation project to use a federal environmental impact statement (EIS) to avoid preparation of a separate state environmental impact report (EIR). The measure also requires the lead agency to notify the appropriate federal agencies of scoping meetings. o AB 950 (Thomson), which extends the sunset date by five years on legislation for a joint powers authority to provide more housing in order to retain Travis Air Force Base in Solano County.

The process of initiative and referendum is California's most peculiar institution. Other states rely on their legislators or other elected officials to hash out controversial public issues in lengthy, complicated and subtle debates. But Californians prefer the blunt instrument of the ballot box — a simple thumbs-up or thumbs-down from voters. We all know this is true at the state level, where voters are confronted on each ballot with a bewildering array of initiatives and bond issues. But it is also true on local ballots — and it is very specifically true about local land-use issues. Nowhere else in the nation do citizens flock to the election booth to vote on local planning and development issues as they do in California. In other states with easy access to the ballot — such as Washington and Colorado — no more than a handful of local land-use ballot measures has ever appeared. But California is different — vastly different. Ever since the California Supreme Court opened up the ballot to general plan amendments and zone changes 20 years ago, citizens — as well as developers and elected officials — have engaged in "ballot-box zoning" more frequently than anyone else in America. Using a database compiled over the years by CP&DR, an analysis of land-use ballot measures shows that there have been 660 measures on local ballots throughout the state since 1986. And there probably have been more because CP&DR has focused on covering measures on major primary and general election ballots, rather than on spring municipal ballots, which can be difficult to track. And what do voters want? Here's a summary: o Over the entire 15-year period, voters chose the slow-growth position 57% of the time. o Pro-growth positions are more likely to win during recession periods than during periods of prosperity. o Urban growth boundaries are becoming increasingly common — and exceptionally popular. Of 37 UGBs we counted on local ballots, 33 have appeared since 1995 — and so far only one has ever failed. (Eleven will appear on the November ballot.) o Perhaps most important, ballot-box zoning is still largely a coastal phenomenon in California. Ballot measures appear far more often in coastal areas than in inland areas — especially in coastal Southern California, and the East Bay and South Bay in Northern California. The UGB activity is even more concentrated around only three counties: Sonoma, Alameda and Ventura. Population Growth Equals Ballot Box Zoning Most of the ballot activity in the last 15 years has occurred in eight counties: the four Southern California coastal counties (Ventura, Los Angeles, Orange and San Diego), and the four counties that make up the East Bay and the South Bay in the San Francisco Bay Area (Contra Costa, Alameda, San Mateo and Santa Clara). These eight counties have seen 365 land-use ballot measures since 1986, or about 55% of the statewide total. During this same period, these eight counties grew in population by about 4 million people, or 53% of the statewide total. Some inland counties also added large population numbers since 1986, including Riverside, San Bernardino, Sacramento and Fresno. But they did not have nearly as many ballot measures. The undeniable conclusion is that land-use ballot measures are deeply entrenched as a policy tool in California's coastal areas — but not in the inland areas — and they occur most frequently in those coastal areas with the greatest numerical increase in population growth. By the way, that 57% pass rate over 15 years holds fairly consistently across California's regions; it's 59% in the Bay Area, 58% in the five-county Southern California metro area, and 60% even in the Central Valley. The exception is San Diego, a county that has had more ballot measures than any other in the state (80) but also the lowest success rate for slow-growthers (48%). In the City of San Diego, for example, voters have faced 14 pro-growth measures in the last 15 years and have passed eight of them — including the new Padres ballpark, an expansion of the convention center, a height limit exemption for Sea World, and the approval of several large-scale residential projects. As another example, Encinitas voters have faced four slow-growth proposals (two in 1988 and two in 1994) and rejected them all. Economy Is A Factor The analysis over time shows some interesting trends as well — and intersects with geography to a certain extent. A previous analysis of growth management in California by researchers Madelyn Glickfeld and Ned Levine found that growth management is sensitive to the economy — that is, slow-growth activity is likely in response to good times (often lagging somewhat behind the actual economic cycle). The CP&DR analysis shows the same thing. Ballot measures spiked in 1990, fell to almost nothing in the years from 1993 through 1995, and have strongly rebounded since then. With almost 70 measures overall (and 50 on the November ballot alone), 2000 will be the most active year for ballot-box zoning in California in a decade. Election results are tied to the economy as well. As the accompanying chart reveals, the slow-growth side beat the pro-growth side overall every year from 1986 to 1993, no matter how many measures were on the ballot. The pro-growth side won in the bleak economic year of 1994, and it was neck-and-neck until 1998, when the slow-growth forces emerged victorious again. This year, curiously, the pro-growthers won the March ballot, but the huge November ballot could well see a reversion to the previous trend. When you slice the data over time and by region, it turns out that regional differences become a bit stronger. In the active period of the late ‘80s, when slow-growth measures first migrated to Southern California, the slow-growthers won all over the state. In the recession period of 1991-1995, the slow-growthers still won in most places — but they lost in San Diego, and their margin of victory in the Bay Area was so slim that the statewide slow-growth pass rate tanked. (Interestingly, the pass rate for slow-growth measures during this period was 53% in metropolitan Los Angeles, compared with only 43% in the Bay Area.) From 1996 through the March election, pro-growthers actually prevailed on balance in L.A. and San Diego; however, there was far more ballot activity in the Bay Area, where slow-growthers did well. During the recession, the five-county L.A. area and the Bay Area each saw about 40 ballot measures. During the late '90s the L.A. number stayed the same, but the Bay Area number grew by 50%, to about 60 measures. During the last five years, we have also seen ballot measures migrate inland somewhat in both Northern and Southern California. During the early ‘90s, ballot activity in the Bay Area was highly concentrated in San Francisco, Santa Mateo, Santa Clara and Contra Costa counties. More recently, we've seen more activity in Sonoma County, in the commuter portions of the Central Valley, and in the highly contentious foothill county of El Dorado. In Southern California, measures moved outward as well, from L.A. and Orange counties to Ventura County and San Bernardino County. Growth Boundaries Usually Win Ventura County ballot activity is up, of course, because the county has become home to the "SOAR movement" — an approach that imposes or reaffirms local urban growth boundaries that cannot be changed without a vote. And the SOAR/Urban Growth Boundary movement represents a fast-growing and popular approach to ballot-box zoning. According to CP&DR's figures, 37 such measures have appeared on local ballots around the state since 1986. Only four of those measures appeared prior to the City of Ventura SOAR election in November of 1995. All the rest have appeared since then — including 11 on the ballot in November of 2000. The numbers suggest two important points about UGB/SOAR-style measures. First, they are extremely popular. Of the 25 measures that appeared from 1990 through March of 2000, only one failed — the SOAR proposal in Santa Paula in 1998. Secondly, voter-controlled growth boundaries are even more geographically compressed than land-use ballot measures as a whole. Twenty of the 37 measures have appeared in just two counties — Ventura and Sonoma — which are the only counties in the state that have fully embraced the idea that a voter UGB must be in place in every city and in the county as well. Six more have appeared in Alameda County. Although UGBs do appear to be moving to smaller communities, these are mostly along the coast. The only non-coastal locations where UGBs have been on the ballot are along the Interstate 80 corridor leading from the East Bay to Sacramento. The next recession might slow things down, but it's not likely to reverse the long-term trend toward more and more ballot-box zoning in California. There is little question that population growth will move inland in the next few years. Recent ballot action in such places as El Dorado County, Tracy and Modesto suggest that some fast-growing inland areas are beginning to catch ballot-box fever. But the culture gap between the coast and inland regions remains strong in California. Thus, ballot-box zoning may remain mostly a coastal phenomenon in the years ahead. For the complete ballot measure analysis, please see our website at www.cp-dr.com

Tejon Ranch Company has received approval from the Kern County Board of Supervisors for the Tejon Industrial Complex, a 320-acre business park along I-5 at the northern base of the Grapevine. Although it is a 45-mile drive from the outskirts of Los Angeles, the project appears to tie Kern County closer to metropolitan Southern California, a concept that Tejon Ranch encourages. Tejon Ranch owns 270,000 contiguous acres (422 square miles) in southern Kern and northern Los Angeles counties, making it one of the state's largest private landowners. The company sees Kern County as an extension of the Los Angeles basin, said Philip Adams, vice president of real estate development for Tejon Ranch. Besides the Tejon Industrial Complex, which has drawn great interest from companies looking for large distribution centers since Kern County approved it in the spring, Tejon Ranch has other blocks of land on the valley floor that it is willing to make available for industrial development. Maybe even more importantly, Tejon Ranch earlier this year announced that it had signed an agreement with three major developers (Pardee Construction, Lewis Investment and Standard Pacific) to create a 4,000-acre master-planned new town in the Tehachapi Mountains near I-5 and Highway 138. And the company talks of building a resort community around Tejon Lake, northwest of the proposed new town. The fact that the industrial park site is roughly 20 miles from the potential new town demonstrates how vast Tejon Ranch's holdings are — and how big a player it could become in the urban development game. For more than a century, Tejon Ranch has been a farming and cattle enterprise. But in recent years the company has hired executives with development expertise, such as Adams and CEO Richard Stine. Now, the company's development plans are becoming public. "They want to go up and over the Grapevine, all along the I-5 corridor," said Mary Griffin, conservation chair for the Kern Audubon Society, which opposed the industrial complex. "I don't want to see that. I want the scenic beauty. I want legitimate agriculture and oil." Earlier this year, Kern County supervisors certified an environmental impact report and approved a general plan amendment, zone change, precise plan, development agreement and parcel map for the Tejon Industrial Complex. The site, along I-5 a couple miles south of the Highway 99 split, had been zoned partly commercial/industrial and partly agricultural, and has served as grazing land. Now it is all zoned M2, a mid-range industrial designation, said Dave Rickels, Kern County special projects planning division chief. The zoning permits a number of light and moderate manufacturing uses, but Tejon Ranch appears mostly interested in warehousing and distribution operations. Tejon Ranch intends to build 3.5 million to 5 million square feet of industrial space at the complex, Adams said. The development agreement locks in place for 10 years all existing development standards. Thus, if the county alters, for example, landscaping or road rules, Tejon Industrial Complex will be exempt. Kern County officials were accommodating because they are interested in the jobs that the industrial park will provide. The county's unemployment rate has remained in double figures during the recent economic expansion. At least 500 people, possibly many more, are expected to work at the industrial park. A major furniture retailer, IKEA, has already signed up for a 1.8-million-square-foot distribution center, which would be one of the state's largest buildings. Tejon Ranch is talking with a number of other companies, all of which want at least 390,000 square feet, Adams said. The advantages for shippers are numerous: the site is along an interstate highway; there will be a freeway interchange designed specifically for trucks; nearby Highway 99 provides access to the fast-growing Central Valley; there is vacant land available for expansion; restaurants and truck stops that Tejon Ranch developed earlier lie next to the site; development is less expensive and employee wages are lower in Kern County than in metropolitan Los Angeles. Plus, traffic congestion in the Los Angeles basin means that it does not take any longer to haul freight from the Long Beach and Los Angeles ports to southern Kern County than to distribution centers in the Ontario and Fontana area, Adams said. "The fact that you are seconds off the freeway makes a huge difference in truck time," Adams added. "I think this is going to be one of the major distribution sites in the United States." That is precisely what worries Griffin and other environmentalists. The industrial park will affect three creeks that are vital for wildlife, she said. The bigger issue, though, is leapfrog development. Bakersfield is nearly 30 miles away and there are very few homes within 20 miles of the industrial park site, so hundreds of workers will have to drive a good distance to the new jobs. Yet Bakersfield has many infill development opportunities, and the area's economically depressed small towns — such as Taft, Arvin, Shafter and Delano — could use jobs, she said. "We don't need this leapfrog stuff. It will be the slums of tomorrow — a new town for L.A.," Griffin charged. The county did have to adopt overriding considerations because of air quality impacts from so many people commuting long distances to work, Rickels said. Such overriding considerations are not uncommon because the south valley's air quality is so poor. "The simple fact of the matter is there are no residential communities in which people could live. There is Frazier Park about 20 miles away, and Arvin and Bakersfield about 25 miles away," Rickels said. But it is the location that makes the industrial project feasible, he said. Tejon Ranch's Adams agreed. Building the project in Bakersfield is not realistic because it is 30 to 40 minutes farther from Los Angeles. The Tejon Industrial Complex site abuts the San Emidio Ranch, where Kern County approved a 9,400-acre subdivision in 1992 (see CP&DR, October 1992, CP&DR Legal Digest June 1993). The San Emidio subdivision, proposed by the late San Fernando Valley developer Dale Poe, has never gone forward although the specific plan remains on the books, Rickels said. The project would need additional environmental review and zone changes, he said. "At least in theory, someone could reactivate that development," Rickels said. "They would almost have to start from scratch. … They would have to readdress the water situation, which was one of the big sticking points on that development." Contacts: Dave Rickels, Kern County planning department, (661) 862-8600. Mary Griffin, Kern Audubon Society, (661) 871-7304. Philip Adams, Tejon Ranch Company, (661) 248-3000. Tejon Ranch website: www.tejonranch.com