It's the oldest contract in the world: I'll scratch your back, if you'll scratch mine. The Walt Disney Co. recently worked a variant on this contract when it agreed to help the City of Anaheim obtain attractive interest rates for nearly $400 million in public improvements around Disneyland and the city's other big draws. On its face, the deal looks good. The town gets fixed up, and both the city and the theme park make money. Why would I care that The Walt Disney Co. was able to obtain at least $108 million, and possibly more, in financing for stuff that benefits Disney almost exclusively, but won't cost Disney anything but a smile and some paper guarantees? Here's the deal in a nutshell: The City of Anaheim raised a total of $395 in revenue bonds (some taxable and some not). Disney sweetened the deal by letting the city use its AAA corporate bond rate — allowing the city to borrow at 6.75% for the tax-free revenue bonds and 8.75% for the taxable. The annual payments — which I calculate to be about $28.1 million — comes entirely from sales tax, hotel tax and increases in Disney's property taxes above a base year. (Disney has a sweetheart deal in Anaheim that exempts the company from paying taxes on either admissions or parking.) To help generate the money for debt service, the city added another 3 percentage points to its hotel tax, and anticipates those revenues growing by 2% annually. In return for its investment, the city expects to receive an impressive $50.6 million in combined tax revenues by the year 2008, about $36 million more than the city had expected to get without the landscaping and new infrastructure. It is enough to pay off the bonds and still add millions to the general fund every year. Disney seemed like a model corporate citizen in 1996, when the entertainment megalith shook hands with Anaheim officials. The undertaking would beautify the streets surrounding Disneyland, the Anaheim Convention Center and Edison Field (formerly known as the Big A.) As anyone who has ever visited Disneyland before this year knows, Anaheim's commercial strips were throbbing eyesores. Mile after mile of flashing signs offered motorists fantasy motels and themed fast-food on their interminable journey from I-5 to the Magic Kingdom. Anaheim officials knew that the tacky streetscape was an obstacle on the road toward making Anaheim a conventional capital on a par with Las Vegas, Atlantic City, and the city's arch-rival, Orlando — the upstart city that had stolen much of Disneyland's thunder and Disney's corporate investment for two decades. The solution was the creation of two contiguous tourist districts, known respectively as Anaheim Resort and Disney Resort. The latter contains the company's 500-acre holdings in the city, while Anaheim Resort comprises the convention center, the arena, and two big entertainment centers that the city has planned but so far has been unable to build. Within the tourist districts, the city removed all the garish signs from hotels and restaurants, replacing them with subdued monument signs that sit on the ground. Telephone and electrical wires have been "undergrounded." Twenty-foot wide promenades with landscaping on both sides replaced narrow sidewalks. Beyond the landscaping, the bond financing paid for a whole bunch of infrastructure for Disney, including a 10,000-space parking structure, a vehicular "flyover" (otherwise known as a bridge) that carries motorists from the freeway exit over busy Ball Avenue and into the parking garage; a new pedestrian bridge on the newly created street known as Downtown Disney; and a lowering of Disneyland Drive by 15 feet (!) so that it can pass beneath a pedestrian bridge that connects old Disneyland with the new theme park. Disney also benefits from the widening of Interstate 5 and a new, free offramp leading to Disneyland Drive. This was financed by a separate issue, and I am not quibbling with these costs, because the same street serves both the Anaheim Convention Center and Disneyland. Still, the bond issue covers many items that appear to benefit Disney almost exclusively. Consider the $90 million parking structure, $5 million pedestrian bridge over Disneyland Drive, and the $13 million "flyover" that connects an interstate highway with a the parking garage. In short, the bond issue funded Disney's plan to make its California franchise look and feel like Orlando: Cars roll off the freeway almost directly into Disney Resort, where tourists can shed some unwanted cash before going back from where they came. Conveniently, Disney "guests" can do all of this without stepping foot in non-Disney Anaheim. After you park your car, a shuttle picks you up and takes you to either the theme parks or your hotel. Like the Patrick McGoohan character in the old TV series "The Prisoner," a present-day Disneyland "guest" (I almost said captive) has to work pretty hard to get away from The Mouse: If you want your car, you have to shlep back to the garage and navigate your way out of the giant structure onto unfamiliar streets. Or you can catch a taxi. So, am I being a spoilsport in questioning whether it was appropriate to spend public funds to absorb almost the entire cost of Disney's Orlando-ization of Anaheim? Some folks would cry corporate welfare, but such talk is considered quaint nowadays. Other folks would say that the cost was worth it to give Anaheim a future. So what if Disney got public funds to make itself into a self-contained tourist-capture machine inside of Anaheim? Since when do you spend public money on the public realm? Disney scratched Anaheim's back as promised, but I can't shake the notion that Disney ended up getting its back scratched far more than did the city. They don't call it the Magic Kingdom for nothing.

The massive project to prevent the Santa Ana River from flooding heavily urbanized portions of San Bernardino, Riverside and Orange counties continues to move forward. Orange County is purchasing property in preparation for raising the existing Prado Dam near Chino. Meanwhile federal officials are wrestling with the environmental affects of an already completed dam farther upstream, a dam that environmentalists say will harm three endangered species. The U.S. Army Corps of Engineers' Santa Ana River Mainstem Flood Control Project has been under consideration for about 30 years. The $1.4 billion project began making major strides 11 years ago when the Corps signed an agreement with the counties of Orange, Riverside and San Bernardino. The four entities are splitting the cost, with the federal government paying about two-thirds of the expense, and Orange County providing the largest local share. Corps engineers said the Santa Ana River — which flows through Colton, Riverside, Norco, Anaheim, Santa Ana, Orange, Fountain Valley, Costa Mesa and Huntington Beach — posed the greatest flood risk in the western United States. The Corps estimated that a serious flood could threaten 3 million people and cause $15 billion in property damage. Tens of thousands of homes lie within the floodplain, and homeowners have had to pay for expensive flood insurance. When complete, the Mainstem project will provide at least 200-year flood protection, whereas the previous facilities did not provide even 100-year flood protection for large areas. The project consists of seven interdependent features: o Seven Oaks Dam near the San Bernardino County city of Highland. The 550-foot-tall, $420 million dam is complete, but discussions continue about whether the dam will create a full-time reservoir or only provide flood control functions. The dam could hold about 145,000 acre feet of water. o Mill Creek Levee reinforcement in San Bernardino County. This 2.4-mile concrete wall, atop an existing levee, is in place. o Oak Street Drain in Corona. The 3.3-mile channel from an existing debris basin to Prado Dam is also complete. o San Timoteo Creek channelization. A new sediment detention basin and channel through the cities of Loma Linda, Colton, Redlands and San Bernardino is nearing completion. o Lower Santa Ana River channelization. This 23-mile project involves widening, upgrading and, in some instances, relocating existing channels. Construction of jetties and a straining dike at the mouth of the river between Huntington Beach and Newport Beach, and various bridge improvements are also part of this effort. The work is nearly finished. o Prado Dam enlargement. The dam, near the City of Chino, will be raised 28 feet, and levees, dikes and the spillway will be upgraded. At an estimated $250 million, this is the second most expensive part of the flood control project. o Santiago Creek Reservoir. The Corps will turn an old gravel pit in eastern Orange County into a reservoir, and will improve creek channels. The overall project is scheduled for completion in 2006, according to Corps spokesman Herb Nesmith. The project also involves acquisition and/or maintenance of a few thousand acres of habitat in various places — including 92 acres of salt marsh restoration, maintenance of 1,100 acres of floodplain below Prado Dam, and 764 acres of habitat below Seven Oaks Dam for the Santa Ana River woolly star, an endangered plant. While the Corps argues that the environmental mitigations are extensive, environmentalists are not satisfied. The Center for Biological Diversity sued the Corps over Seven Oaks Dam's impacts on three endangered species — the woolly star, the slender-horned spineflower and the San Bernardino kangaroo rat. The U.S. Fish & Wildlife Service raised the species issues six years ago, and the Center threatened to sue three years ago, but the Corps "essentially dragged their feet until the dam was built," said Noah Greenwald, a conservation biologist for the Center. In August, the Corps issued a biological assessment for the dam, which the Fish & Wildlife Service is now reviewing, said P.J. White, branch chief for the Service's San Bernardino County office. White said he was still going through the document. His agency has until about the end of the year to issue its "biological opinion," which could lead to further mitigations. The status of the kangaroo rat has declined since the federal agency listed the species as endangered about three years ago, White said. "We're very concerned about the kangaroo rat and certainly the Seven Oaks Dam affects the largest population of the rat that is in existence," White said. Greenwald said the Corps' latest biological assessment basically proposes the same mitigations as contained in reports from the late 1980s. The two rare plants and the kangaroo rat are all dependent on flooding, which the new dam will prevent, he said. "I would like to see flood-like conditions re-created as much as possible in the wash," Greenwald said. The Corps also should purchase mining rights in the wash and acquire habitat elsewhere. These mitigations, however, are expensive. Greenwald said the entire project is "symptomatic" of Southern California's approach to flood control, which so often replaces biologically diverse habitat with concrete and rip-rap. Meanwhile, preparations for the Prado Dam enlargement continue, according to Elayne Rail, chief of real estate and financial planning for the Orange County Flood Control District. Officials are still refining project details and completing environmental documents, including a biological opinion by the Fish & Wildlife Service, she said. Once that work is complete, the county and Corps should be able to sign a project agreement, probably in January, she said. Once an agreement is in place, work would begin almost immediately on the $250 million project, for which the county and the Corps will split costs equally. Rail estimated the Prado Dam construction would take five to six years. Contacts: Herb Nesmith, U.S. Army Corps of Engineers, (213) 452-3921. P.J. White, U.S. Fish & Wildlife Service, (760) 431-9440. Noah Greenwald, Center for Biological Diversity, (520) 623-5252. Elayne Rail, Orange County Flood Control District, (714) 834-6000.

Building on an earlier case, the Fourth District Court of Appeal has expanded protection of low-quality coastal wetlands. Overturning a trial judge, the court ruled that all wetlands in California's coastal zone — even those not located in "environmentally sensitive habitat areas," (ESHAs) — should receive the same level of legal protection whether they are pristine or degraded. Last year, the same court ruled that coastal wetlands' quality could not be taken into account in determining whether wetlands should be protected if they are located inside ESHAs, which are designated by the Coastal Commission. (Bolsa Chica Land Trust v. Superior Court, 71 Cal.App.4th 493; see CP&DR Legal Digest, May 1999.) The new decision extends the same rule outside of ESHAs. "The same reasoning applies here, as the statutory scheme protecting wetlands in this regard does not differ in any meaningful fashion from that protecting ESHAs," wrote Justice Don Work for a unanimous Division One of the Fourth District. "… s we explained in Bolsa, the failure to protect the low-quality wetlands would encourage developers to find threats and hazards to all wetlands located in economically inconvenient locations." The Fourth District concluded that the record did contain substantial evidence that wetlands exist on flood-prone property along the Encinitas River owned by horse ranchers Christopher and Gregory Kirkorowicz. The Coastal Commission had used this finding to overturn a decision by the Encinitas City Council that would have permitted the Kirkorowiczes to expand their stables even though 0.44 acres of apparent wetlands would be filled in. The court ruled that biologist Vincent N. Scheidt, of Dudek & Associates, who was retained by the City of Encinitas, correctly used both the Coastal Commission's Interpretive Guideline and the U.S. Fish & Wildlife Service's 1989 wetlands delineation manual in determining that wetlands existed. The property owners claimed that even though some indicators of wetlands existed — and even though the property floods on a regular basis — Scheidt had not correctly measured the property's characteristics against the Service's classification system. But the court rejected the property owners' assertion that the wetlands were not worthy of protection because they are degraded and not located in a Coastal Commission-designated ESHA. Justice Work concluded: " ection 30233 limits development of all wetlands regardless of their quality." Work also noted that Encinitas's coastal land use policies (contained in the city's Local Coastal Program and approved by the Coastal Commission) declare that there shall be no net loss of wetlands acreage or resource value. In fact, the policies encourage a net gain without distinguishing among the quality of resources. "Simply stated," Work wrote, "in determining whether a wetland is protected under the Coastal Act and the LCP, the quality of the wetland is essentially irrelevant." Work also noted that in this particular case, the small, degraded wetlands holds the potential to help buffer the larger and higher-quality wetlands around the adjacent San Elijo Lagoon Preserve. The case began when the Kirkorowicz brothers, who already board horses on their flood-prone 21-acre property along the river, sought to add new facilities, including a stable, storage areas, and a driveway. The project required 8,700 cubic feet of fill. In a report to the city, biologist Scheidt determined that the project would result in a direct loss of 0.44 acres of jurisdictional wetlands, though he stated that wetland hydrology "is absent" from the part of the site where the fill was proposed. He also described the wetlands as degraded because of its traditional use for grazing. In a series of hearings before the Planning Commission, the City Council and the Coastal Commission, the Kirkorowiczes agreed to revamp the protect and reduce the fill area to 0.35 acres of wetlands. However, the Coastal Commission turned the project down as inconsistent with the city's certified LCP and claimed other alternatives had not been explored. The Kirkorowiczes then sued, petitioning for a writ of administrative mandamus on several grounds. After the Bolsa Chica decision was handed down, however, the parties agreed to narrow the case to the question of whether the project would affect jurisdictional wetlands. San Diego Court Superior Court Judge Vincent DiFiglia ruled in favor of the Kirkorowiczes, concluding that while the Coastal Commission had presumed that wetlands existed on the property, "the Court finds that there is not substantial evidence that the Kirkorowicz' property is a protected wetland" under either the Coastal Act or the Encinitas LCP. The Coastal Commission then appealed to the Fourth District. The Kirkorowiczes's main argument on appeal was that Scheidt, the biologist, had not found that the property contained the characteristics required to make the wetlands finding. Scheidt had found "hydrophytes" (water-oriented species), but they represented only 43% of the species on the site (18 of 42) and he had concluded that wetlands hydrology did not exist on the fill portion of the site. However, in rejecting the property owners' argument, the Fourth District noted that Scheidt had filed a second report in which he detailed his adherence to the Unified Federal Method for wetlands delineation. "There is no evidence," the court wrote, that Scheidt failed to follow those procedures. The court also rejected the property owners' argument that the area was not deserving of protection because the wetlands were in a degraded state. Quoting its own ruling in Bolsa Chica, the court wrote that wetlands "whether they are pristine or growing or fouled and threatened receive uniform treatment and protection." The Case: Kirkorowicz v. California Coastal Commission, No. D034287, 00 C.D.O.S. 7856 (issued September 21, 2000). The Lawyers: For Kirkorowicz: Donald Robert Worley, Worley, Garratt, Schwartz, Garfield, and Prairie, (619) 696-3500. For California Coastal Commission: Daniel L. Siegel and Lisa Trankley, California Attorney General's Office, (916) 445-9555.

In retrospect, no one should have been surprised by the chaos this summer in California's electricity industry. The stage was set six years ago for a painful collision between consumer expectations and marketplace realities when the Public Utilities Commission began dismantling the tightly integrated power industry. In 1996, the Legislature expanded the PUC's efforts and practically guaranteed this summer's debacle when it hurriedly approved a complicated deregulation plan intended to reduce consumer prices by introducing competition into what had been an industry of regulated monopolies. Nevertheless, this summer's power crisis — which saw retail rates more than double in the San Diego area, blackouts and brownouts in Northern California, and service cutoffs statewide to customers with "interruptible" contracts — caught lawmakers unprepared. As consumer indignation rose to fever pitch, the Legislature struggled to respond before its Aug. 31 adjournment. A last-minute flurry of activity produced three pieces of legislation, only one of which — an effort to speed the construction of new power plants — is likely to have any lasting, beneficial effect on California's power network. The push to expand the state's generating capacity deserves examination because it raises important questions about the social and environmental tradeoffs Californians are willing to make in return for abundant, affordable electricity. The legislative deregulation plan approved in 1996 split the formerly integrated system of generation, transmission and distribution into isolated components, and opened the generation component to market competition. In theory, generators competing for market share would squeeze inefficiency out of the system and vie with each other to offer the lowest prices and best customer service, the overall result being that California's electricity rates — then 50 percent higher than the national average — would fall. Those expectations, however, were crushed in the vice of supply-demand dynamics. California's generating capacity has been stagnant for 10 years, while demand has soared thanks to population growth, a booming economy, and the rise of a technology sector dependent on abundant power to drive its manufacturing processes and to keep its products blinking and humming after consumers have brought them home. Because of the uncertainty created among investors by the complicated deregulation scheme, few proposals to construct power plants materialized during the 1990s. Uncertainty evaporated this summer, the first extended period of high temperatures since the freeze on retail rates — imposed under the state's deregulation legislation for a period of time that varies from utility to utility — expired for customers of San Diego Gas & Electric Co. Bills for SDG&E customers promptly doubled, and continued rising all summer. There is no simple explanation for the tumultuous combination of supply unreliability and price volatility. What is clear is that demand for electricity now exceeds supply in California. And with the prospect of generous profits to be made selling power in the nation's most wired state, it is reasonable to expect that private firms will begin trying to take advantage of the situation. In only two years, 25 applications have been (or are expected to be) submitted to the California Energy Commission for power plant licensing. Some applications represent expansions of existing facilities, such as the big plants at Moss Landing, which PG&E sold to Duke Energy. Other applications represent new facilities. The power plant licensing process now takes a full year if everything goes well. Design and construction typically takes another year or two. Under the emergency legislation hurriedly passed in late August by the Assembly and Senate, and just as swiftly signed by Gov. Davis, the licensing process will be shortened to six months. Assembly Bill 979 also establishes a governor's Clean Energy Green Team comprising 15 members, including Cabinet secretaries, officials of local air quality districts, and representatives of federal environmental agencies. The team has 90 days to produce recommendations for minimizing the environmental effects of new generating plants, and is directed to help plant operators cut through state and local red tape — permit processing, land-use authorizations — to get new generators on line quickly. The environmental concerns are appropriate; the summer power crisis has already demonstrated troubling implications for California air quality. Older plants, which tend to be dirtier than new ones, have been forced to step up operation to keep the grid juiced. Reluctant to take plants off line — which would cut profits and threaten the grid's stability — operators have been unable to perform scheduled retrofits of improved pollution-control devices. Even more troubling, the power shortage this summer prompted the Independent System Operator — the private, nonprofit organization set up by deregulation law to manage day-to-day operation of the state's transmission system — to order the use of emergency generators at times of peak demand. These generators typically run on diesel fuel and have no emission controls; there are more than 1,000 in the San Diego area and two to three times that many in the Bay Area, according to a recent PUC report. The Air Resources Board estimates that one diesel generator operating for 200 hours will cause 100 new cancers per million people. Although they are cleaner than emergency generators, permanent generating plants — which typically burn relatively clean natural gas — still degrade air quality. And, typically, the people exposed to those emissions live in working-class neighborhoods with large minority populations. In eastern Contra Costa County, for example, ten power plants line Highway 4 between Bay Point and Antioch, with an eleventh working its way through the permitting process. In early September, a group of Bay Area environmental groups leveled harsh criticism at the Bay Area Air Quality Management District for failing to consider the issue of environmental justice in its review of power-plant proposals. "Most of the people living around the plants are poor, working-class people who don't have the time to commit to protesting them" Mike Boyd, president of Californians for Renewable Energy, told the San Francisco Chronicle. The list of power plant licensing cases before the California Energy Commission reveals a distinct shortage of proposals in or near well-to-do communities with largely white populations. Instead, they are proposed for places less likely to mount well-funded, politically potent opposition: Victorville, Pittsburg, Blythe, small towns in Kern County, industrial areas of Los Angeles County. There may be sound reasons for this, just as there is an argument to be made for allowing heavily polluting old generators to fire up temporarily to prevent crippling blackouts. It will require close scrutiny by advocacy groups, however, to make sure the power crunch is not allowed to overwhelm California's commitment to social equality and environmental protection. Contacts: The Public Utilities Commission report to the governor on this summer's power crisis, "California's Electricity Options and Challenges," is available online at www.cpuc.ca.gov/. Californians for Renewable Energy: by e-mail at info@calfree.com, or on the Web at www.calfree.com/home.html

It goes without saying that in land-use planning, as in most other aspects of governance, where you stand depends on where you sit. One person's sprawl is another person's prosperity; one jurisdiction's responsible stewardship of resources is another jurisdiction's lost opportunity for economic development. When you get this kind of conflict in California land-use planning, usually you wind up in court — simply because there is no other forum for appeal. And so it is not surprising that the City of Brentwood has decided to sue Contra Costa County over the Board of Supervisors' July decision to "shrink" the county's urban limit line by 14,000 acres. A split San Ramon City Council has since voted to join Brentwood's lawsuit, and the City of Antioch and some of the affected landowners might jump aboard as well. The ensuing battle is likely to be a typical one in many ways, with jurisdictions and landowners battling on many fronts at once — at the county, at the cities, in the courts, and probably also at the Contra Costa County Local Agency Formation Commission. Yet it certainly looks like it's going to shape the final urbanization pattern in one of the state's key growth counties, and it may clarify the roles — and the leverage — that cities and counties have in shaping growth. A little background is in order here. Contra Costa is a large, demographically mixed county of 800,000 people in the East Bay. It includes many upper-middle-class suburbs, such as Walnut Creek and Orinda, but it also contains a long string of old working-class towns along the Bay and Delta, from Richmond to Pittsburg. Job growth along the I-680 corridor in the central part of the county has stimulated a huge demand for residential development. But resistance to growth is high in the areas where business is booming. As a result, a great deal of residential pressure is being bounced into open spaces to the east — into places such as Antioch, Brentwood, and Oakley. A decade ago, voters in Contra Costa County ordered the county to limit urban growth so that only 35% of the county's land area is developed, while 65% is either set aside or used for rural purposes. Voters also told the county to create an urban limit line to implement this requirement. The county subsequently created the "ULL," but it had wiggle room in it — that is, it specified what areas could and could not be developed, but placed more than 35% of the land area inside the line. The idea was to give the supervisors some room to maneuver in determining which land should be developed. Then, in the early 1990s, the politics of the Board of Supervisors changed. In particular, a pitched battle ensued over the proposed development of Tassajara Valley, an undeveloped area near San Ramon and Danville, in the vicinity of the I-680 corridor. A new supervisor, Diane Gerber, was elected based on her opposition to the Tassajara proposal and subsequently it was withdrawn. That led Gerber and her political allies to begin working to change the ULL so that Tassajara would lie outside the urban boundary. And it encouraged them to start lobbying the county's Local Agency Formation Commission to honor the ULL, even though the boundary was a policy of the county, not of the cities. The LAFCO eventually adopted a policy of adhering to the line whenever possible unless violating it "compellingly outweighs the public interest in limiting growth to areas within the line." (See CP&DR, April 1999.) It's a ways from Tassajara Valley to Brentwood — approximately 40 miles — but it was not long before several critical pieces of property in the eastern part of the county came into play in the controversy over the proposed ULL change. It began when Supervisor Joe Canciamilla, a former Pittsburg city councilmember, convened meetings with city officials in the east county to discuss a mutual approach to growth. But in the end, they couldn't agree. In backing the ULL "shrinkage," Canciamilla proposed cutting out several key properties that had been targeted by Antioch and Brentwood for development. Especially in the case of Brentwood, these changes included properties that are currently inside the city's sphere of influence. None of this has made Canciamilla a popular guy at Brentwood City Hall. Within a week, the Brentwood City Council voted to file a legal challenge to the environmental impact report for the new ULL. Mayor Quentin Kidd claimed that Canciamilla was simply pandering to the West County slow-growth crowd in his race to succeed Assemblyman Tom Torlakson. (Brentwood is not in Torlakson's district; most of Antioch is.) In response, Canciamilla took the high road. "There's a good deal of economic development competition between Brentwood and Antioch," he said. "I have a more regional perspective." San Ramon's decision to join the lawsuit was led by Mayor Curt Kinney, who happens to be running against Gerber in November. Whatever, the motivations, the ensuing litigation may be pretty sprightly. For example, one of Brentwood's major moves is likely to be an attack on the EIR's analysis of whether future housing will be displaced. While acknowledging possible displacement, the EIR minimized it as a problem; Mayor Kidd responded by saying that the removal of development potential from Brentwood's expansion area imperils the city's ability to meet the affordable housing goals in its housing element. Meanwhile, of course, there remains the question of whether the county's LAFCO will shrink the sphere to conform to the ULL — or deny annexations that violate the ULL even though they are in the sphere. All of which suggests that it will be a while before the eventual urban form of Contra Costa County is resolved. And, along the way, some interesting legal and political battles may help clarify — or further muddle — the interplay among some of California's most important land-use policy tools.

The state Legislature completed its two-year session with a flourish during the last week of August but appeared to leave Sacramento without adopting major land-use policy changes. Assembly Speaker Robert Hertzberg's overhaul of the Cortese-Knox Local Government Reorganization Act was among the year's highlights, although he watered down the measure from early drafts. The broad-based Jobs-Center Housing Coalition, which has focused on the Bay Area housing crunch, saw three of its nine bills approved, while the new, two-house Smart Growth Caucus had a similar batting average for its 13 bills. The Legislature did not pass comprehensive local government finance reform - despite a plethora of reports and studies released earlier this year that indicate the system is failing and that cities and counties often make land-use decisions based on a project's fiscal impacts. The Legislature did pass a measure, SB 1637 (Burton), that phases in a cap of the ERAF property tax shift from counties and cities to schools. The bill ensures that local governments will get all of their shares of the growth in property taxes beginning with the 2002-03 fiscal year. A measure from Assemblyman Antonio Villaraigosa (D-Los Angeles), the former Assembly speaker, to overhaul the local government finance system bogged down in a two-house conference committee. Lawmakers eventually passed the bill, AB 1396, as a $212 million local government relief package to be distributed on the basis of ERAF contributions and population. Assemblyman John Longville (D-Rialto) said lawmakers have offered more lip-service than commitment to solving the problem. Longville, a former Rialto mayor who was chairman of the Assembly Local Government Committee for most of the year, said if he were still in local government, he would insist on a constitutional amendment the protects local government revenue sources. The Hertzberg bill, AB 2838, contains some of the recommendations that the Commission on Local Governance for the 21st Century issued earlier this year. The commission's focus was on making local agency formation commissions, which are guided by Cortese-Knox, more powerful and more independent than they have been. The speaker's bill appears to take steps in that direction, although he made a number of amendments to satisfy the development community, including deleting a provision that would let LAFCOs require community growth plans for unincorporated areas. The bill does require LAFCOs to establish policies and procedures to help stem sprawl by encouraging efficient urban development and preserving open space. The bill also requires cities and special districts to help counties fund LAFCOs, increases commission membership from five to seven and ensures special district representation. Trish Clarke, a member of the Shasta County LAFCO who served on the 21st Century commission, called the bill positive and helpful. She said it lets LAFCOs force joint planning, or at least consistent planning, in areas where spheres of influence overlap. "The cities and the counties have to talk to each other," Clarke said. Ron Wootton, chairman of the California Association of Local Agency Formation Commissions and a special district representative on the San Diego LAFCO, said the bill is important because, "It brings LAFCOs to the table with cities, counties and special districts for the first time." Wootton added, "This is the first time the cities haven't opposed anything with the word ‘LAFCO' in it." New coalition gets affordable housing bill passed The three Jobs-Center Housing Coalition bills that passed dealt with redevelopment housing, brownfields and ballot-box planning. The coalition's bills to decrease California Environmental Quality Act-reviews of infill housing failed, as did a bill that would have provided property tax incentives for communities that balance jobs and housing. Also failing were three bills aimed at modifying the construction defect liability system, which builders say discourage construction of condominiums and townhouses. The redevelopment bill, AB 2041 (Dutra), allows contiguous redevelopment agencies within a single metropolitan statistical area to establish a joint powers authority for pooling low- and moderate-income housing funds. As of this January, authorization for spending redevelopment funds outside of a project area expired. Backers of this bill said it would encourage development of affordable housing because some redevelopment agencies move slowly on housing while neighboring communities welcome new homes. Bill opponents, however, said AB 2041 would allow cities to receive the economic benefits of redevelopment and escape their affordable housing obligations. The brownfields bill, SB 1789 (Rainey), calls for the state to analyze policies that hinder remediation and redevelopment of brownfields, and to make recommendations to encourage redevelopment. The ballot-box planning bill, SB 1966 (Brulte), takes aim at slow-growth initiatives. Cities and counties already had the authority to commission an analysis of a ballot measure; this bill specifies that local officials can refer an initiative to the appropriate city or county agency for a report on how the measure would affect the jurisdictions' ability to meet regional housing needs, infrastructure funding, business attraction and retention, and use of various lands. Smart Growth Caucus finds mixed success The Smart Growth Caucus, headed by Assemblywoman Patricia Wiggins (D-Santa Rosa), had endorsed 13 bills that ranged from Hertzberg's LAFCO measure to bills that concerned water, housing bonds, transit-oriented development and other issues. Only three measures passed - the Hertzberg bill, a wetlands protection measure and a regional jobs-housing balance bill. Two other bills, Villaraigosa's AB 1396 and a smart-growth measure, passed in substantially amended form. The wetlands bill, AB 2286 (Davis), calls for the California Resources Agency to update the wetlands management plan required by the Keene-Nejedly California Wetlands Protection Act of 1978. The bill calls for compiling an inventory of wetlands and setting priorities for enhancement, restoration and conservation of wetlands. The jobs-housing balance bill, SB 1642 (Figueroa), requires the Department of Housing and Community Development and regional councils of government to seek a ratio of 1.5 houses for each job. Noting that there are still few penalties for jurisdictions that fail to build the houses that a regional plan specifies, a Senate bill analysis questioned the eventual effectiveness of SB 1642. "It is unclear exactly what impact the establishment of a specific numeric jobs/housing balance goal will have on this process," Senate Housing and Community Development Committee Consultant Mark Stivers wrote. "Would it be more appropriate to create incentives or sanctions for local governments to facilitate the production of additional housing?" The smart-growth measure, AB 779 (Torlakson), started off as a carrot for transit-oriented development. But the assemblyman from Martinez amended the bill so that it establishes "smart growth" criteria for the California Pollution Control Financing Authority to award grants. According to Torlakson's office, the bill would direct grants to "economically distressed cities and counties" to develop revitalization plans. The local governments must incorporate in their plans smart-growth strategies, such as transit-oriented development, traffic reduction measures, and infill development on brownfield sites. State Treasurer Phil Angelides, who oversees the CPCFA, supported the revised bill. The Legislature also approved a companion measure, SB 1986 (Costa), that allows the CPCFA to provide grants and loans for brownfields site assessments, remedial action plans, technical assistance, cleanup and redevelopment. Plenty of project-specific bills One late-session, gut-and-amend bill, AB 2698 (Florez), smoothes the way for a large electrical plant that Enron Corp. wants to build in southern Kern County. Enron has chosen 30 acres of pasture owned by the Tejon Ranch for a 750-megawatt power plant. However, the property is under a Williamson Act contract, which provides the landowner a substantial tax break in exchange for maintaining the property for agriculture or open space. Normally, getting out of a Williamson Act contract takes 10 years. Outright cancellation of a Williamson Act contract requires the local governing body, in this case the Kern County Board of Supervisors, to make a finding that says, basically, there is nowhere else that this project could be built - a finding that the county is willing to make. The landowner also has to pay a substantial amount to the county, which Enron is apparently willing to pay. The legislation greatly reduces the statute of limitations for challenging this particular Williamson Act cancellation. Normally, the public gets 180 days to file a lawsuit, but AB 2698 cuts the statue of limitations to 30 days for the Enron project only. That forces potential opponents to act quickly and gives Enron quicker certainty on the project. A bill by Senate President Pro Tem John Burton, SB 1562, takes an approach to CEQA that could be the first of its kind. The bill says that the state's purchase and restoration of 19,000 acres of salt flats along San Francisco Bay, now owned by Cargill Salt Co., will offset the airport's plan to fill in 1,000 acres of the bay for new runways. Bills that carve out CEQA exemptions for specific projects are not uncommon, but this could be the first bill that spells out mitigations before an environmental review is complete, said Randy Pestor, a consultant to the Senate Committee on Environmental Quality. The salt flats purchase is estimated to cost about $300 million. A companion bill, AB 398 (Migden), allocates $30 million in state funding as a down payment, although Gov. Davis is reported to be cool about the expenditure. U.S. Sen. Dianne Feinstein has secured $50 million in federal funding for the purchase. While the Florez and Burton bills each aid a specific development, lawmakers approved two other measures intended to slow or halt projects in Southern California. Assembly Bill 1758 (Kuehl) hinders a proposed subdivision in eastern Ventura County by offering protection to a rare plant; AB 2752 (Cardoza) puts the kibosh on a landfill proposed next to a northern San Diego County Indian reservation. Kuehl's bill hits at a Washington Mutual plan to develop a 3,000-home subdivision on Ahmanson Ranch, a project approved in 1992 but strongly opposed by neighboring Los Angles County and some area homeowners. Earlier this year, the San Fernando spineflower, which scientists thought had became extinct half a century ago, was found growing on the Ahmanson Ranch. Project opponents seized on the spineflower discovery and demanded action by the state. But state officials at first seemed unsure how the rediscovered species fit into the regulatory framework. The Kuehl bill authorizes the Department of Fish & Game to grant immediate protection to a species that was thought to be extinct. The bill makes it clear that the spineflower and any other rediscovered species must be left alone while the state completes a process to determine the status of the plant or animal. The narrowly drafted Cardoza bill prohibits the state from permitting a landfill in a canyon considered sacred by the Pala Indians. In 1994, voters approved the Gregory Mountain landfill, an action that the Pala Indians challenged in court but lost. (See CP&DR , June 1997, January 1999). Some bill opponents argued that the Indians were mostly concerned about the garbage dump's proximity to their planned casino. Not this time Several bills had a high profile earlier in the session but did not become law. Among them: AB 1219 (Kuehl), which would have required verification of water supply availability before approval of residential developments with at least 200 units. This bill was a favorite of environmentalists and the East Bay Municipal Utility District, and was strongly opposed by developers and local government. AB 755 (Hayden), which would have added a number of provisions to strengthen CEQA. This bill had been a priority for environmentalists. AB 717 (Keeley), which would have placed a two-year moratorium on clear-cutting of private forests. AB 1968 (Wiggins), which would have authorized cities and counties to enter into agreements to coordinate land-use planning on a regional basis. AB 2779 (Cox), which would have strengthened existing provisions that require incorporations to be "revenue neutral." While the California State Association of Counties backed the bill, several groups seeking to create new cities, including the Rancho Cordova Incorporation Committee, argued that it would slow or stymie their efforts. AB 2774 (Corbett), which would have provided $10 million in grant funds for general plan updates. Others land-use bills of interest that were passed by the state Legislature: AB 356 (Washington) creates an enterprise zone in the City of Compton to induce economic development. AB 950 (Wiggins) extends the sunset date by five years (to January 1, 2006) on a measure that allows Fairfield, Suisun City, Vacaville and Solano County to create a joint powers agency to provide housing for the retention of Travis Air Force Base. So far, the jurisdictions have not moved on the JPA because of a lack of funds. AB 970 (Ducheny/Battin) establishes the Governor's Clean Energy Green Team with the intent of expediting approval of clean power plants. The bill was a response to soaring energy costs and roving brownouts. • AB 1416 (Wesson) among other things, extends a moratorium on new cardrooms by five years to 2007. AB 1807 (Longville) gets Caltrans more involved in the CEQA review of local development projects by giving the Office of Planning and Research a middleman role. AB 1944 (Wayne) strengthens Williamson Act provisions and specifies what land-uses are compatible with the act. AB 1960 (Machado) prohibits a local agency formation commission from charging city incorporation proponents for the cost of an EIR. The bill stems, in part, from the San Fernando Valley secession movement. AB 2300 (Florez) is another attempt to crack-down on Marks-Roos financing arrangements where the only public entity is geographically removed from the development that would be funded. Although the state attorney general and treasurer support the bill, last year Gov. Davis vetoed a similar bill. SB 57 (Hayden) creates the Santa Monica Bay Restoration Project, in part to address the problem of stormwater pollution in the bay. SB 89 (Escutia) requires the Cal EPA secretary to convene a working group on environmental justice. The group will have three years to prepare a series of recommendations on implementing environmental justice procedures and policies into Cal EPA programs. SB 329 (Peace) creates an 11-member San Diego Regional Government Efficiency Commission, which must craft a plan for consolidating San Diego's regional agencies and improving coordination among the agencies. The bill is a much watered-down version of an earlier measure that would have eliminated the San Diego Association of Governments. SB 667 (Sher) creates an $85 million brownfields assessment and reuse grant/loan program in the Department of Toxic Substances Control. SB 1621 (Alarcon) limits local governments' ability to declare moratoria on multi-family housing development and requires cities and counties to zone adequate land to meet the jurisdictions' housing needs for all income categories. The bill is a response to recent multi-family housing moratoria in Indio, Palmdale, Lancaster and Paso Robles. SB 1834 (Alpert) requires the State Water Resources Control Board to develop guidelines that the board and the nine regional water quality control boards should use for implementing nonpoint source pollution control programs.

The City of Fresno is close to adopting a general plan that would allow the city's population to increase by two-thirds within the existing sphere of influence. The proposed general plan, which contains many New Urbanist concepts, presents a marked departure from past Fresno planning practices that encouraged low-density development on the fringes. "For the first time, we're not proposing to extend our sphere of influence line outward," Fresno Development Department Director Nick Yovino said. "For us, it's a major change in the way we've done planning. … These are planning policies we've never seen in Fresno." The draft general plan builds on a 1998 document issued by the Growth Alternatives Alliance, a collection of development, agricultural, business and environmental groups. The Alliance's "Landscape of Choice" was widely lauded for its recommendations regarding compact development, urban infill and preservation of farmland. While Landscape of Choice remains popular, Fresno will need cooperation from neighboring jurisdictions for its plan to be effective. City officials also must deal with homeowners who object to significant upzoning of their rural residential neighborhoods. "The big question in all of this," Fresno Mayor Jim Patterson conceded, "is whether Fresno will explode in another jurisdiction." Fresno's general plan update process is eight years old, but the city changed directions less than a year ago. In 1992, a 27-member citizen advisory committee started work. The committee conducted more than 100 meetings and addressed numerous planning issues and alternatives before issuing a recommended plan (now called the 2020 Plan) in March 1997. The 2020 Plan called for expanding the city's sphere of influence by one-third to about 189 square miles, creating three new growth areas, intensifying development on the city's west side and encouraging extensive mixed-use development. Assuming an annual growth rate of 2.7%, the plan would accommodate 920,000 people. The same area now contains about 480,000 residents, about 60,000 of whom live in unincorporated Fresno County. After the committee issued its recommendation, Patterson and three councilmembers began meeting with representatives of Fresno County and the City of Clovis, which abuts northeast Fresno. However, an inability to reach tax-sharing agreements hindered regional planning. So in October 1999, Patterson and the ad-hoc committee told planners to start over: Fresno should accommodate the next 20 years of growth within its existing 141-square-mile sphere of influence. After working on the 2020 Plan for seven years, planners have shifted into warp speed to get a very different plan adopted before a new mayor and new councilmembers are seated in January. The new plan, called the Mayor's Alternative 2000 Plan, reduces growth projections to 2% per year. That figure jibes with revised estimates from the state Department of Finance, which two years ago cut its own growth projections in half. Still, the proposed general plan adds about 305,000 people to the existing sphere of influence. That would make Fresno similar to present day Indianapolis in population and density, and more populous than such big cities as Baltimore, Memphis and Seattle. Thus, Fresno's proposed general plan is urban in nature, calling for several mixed-use activity centers, more residences downtown and a lengthy mid-rise and high-rise corridor along Highway 41/Blackstone Avenue. The plan eliminates farmland from the city and increases permissible building densities on large swaths of existing ranchettes and large-lot residential parcels. The plan's appendix includes the Landscape of Choice recommendations and even the Ahwahnee Principles from the New Urbanism movement. The new approach prevents Fresno's urban development from swallowing valuable farmland. That is especially important because, with a 1999 agricultural output of $3.6 billion, Fresno County is the most productive farm county in the United States. Fighting urban sprawl and protecting prime agricultural land are major issues in the Central Valley, and the region's largest city should take the lead, Mayor Patterson said. "This is a very big change for Fresno. We have grown out since we've been a city," said Patterson, who will complete his second, and final, four-year term in January. But Fresno leaders acknowledge that their new approach to development will fail if other jurisdictions — namely Clovis, and the counties of Fresno and Madera — demonstrate a willingness to permit old style sprawl. Madera County Planning Director Leonard Garoupa said Fresno's proposed general plan "would probably intensify development pressure in our county somewhat," But, he added, unincorporated Madera County, which lies across the San Joaquin River from Fresno, received several large-scale development proposals without a change in Fresno's growth strategy. The five-year-old Rio Mesa Area Plan calls for upwards of 30,000 homes in three villages in southern Madera County. The county is now working on an infrastructure plan for two of the villages, Garoupa said. Garoupa said his county pursued the Rio Mesa plan because Fresno-area growth has moved north toward Madera County and because the state intends to extend the Highway 41 freeway into Madera County. The University of California's plans to build a tenth campus in the area — since dropped in favor of a Merced County location — also spurred Madera County's planning, he added. Madera County's apparent willingness to accommodate spill-over growth worries Fresno officials. Fresno's relationship with its own county also is tenuous. "There are significant forces that would try to break up this effort and peel off large tracts away from our spheres to get approval by the county," Patterson said. "My hope is that the county would say no to it." In fact, Fresno County is updating its own general plan, with adoption scheduled this fall. Although the county's draft general plan emphasizes economic development, the proposed plan directs 93% of population growth to existing cities or unincorporated communities. Preservation of farmland is a priority. "The major thrust is to continue to direct — and I say continue to direct because it has been the county's policy since its adoption of the general plan in 1976 — intensive development to the incorporated cities," said Stan Ediger, a Fresno County planner. Still, Yovino noted a conflict: the county's draft plan calls for Fresno to enlarge its sphere of influence, and for all other cities to maintain their existing spheres. Yet Fresno is the only city in the county that is not interested in expanding its sphere. Clovis, a city whose population has doubled in 20 years to 70,000, could be an even greater concern. The Clovis general plan calls for a significant eastward expansion to accommodate about 45,000 more people. Clovis has been negotiating with the county over a sphere of influence expansion for three years. Clovis Planning and Development Service Director John Wright, however, said he sees no conflict between his city's seven-year-old general plan and Fresno's proposal. Fresno never had designs on Clovis's planned area of expansion. And Landscape of Choice endorsed the Clovis general plan for its emphasis on new urban centers, Wright noted. Fresno's growth policies affect Clovis, but they are not a deciding factor in how Clovis develops, Wright said. "We look at what is around us, but we believe we have a distinct and unique community," he said. While staff planners from the various cities and counties have tried to maintain communication, elected officials have shown little willingness to meet to discuss regional land use issues. Patterson said Fresno prefers a cooperative approach but is not afraid of a fight. If it appears other jurisdictions are approving projects that use land or water inefficiently, "we can be the biggest, meanest, baddest dog on the block and challenge every CEQA document that these other jurisdictions prepare," Patterson said. Patterson also noted that the proposed plan has a way out. It calls for an annual "status of the general plan" report by the mayor, which he described as a "gut check." One issue almost certain to appear in annual reports concerns upzoning of rural residential districts on either side of the existing city limits. First, the City Council must overcome residents' demand that large-lot zoning remain in place. Then, to implement denser zoning, the building industry will need to assemble numerous existing parcels, some of which might already be developed, Yovino said. "We are making sure that everybody knows this will not be a simple thing to do," Yovino said. "We don't have all of the exact answers." Larry Mintier, of J. Laurence Mintier & Associates, Fresno County's general plan consultant, said reaching agreement on the future of existing rural residential areas has proven sticky. Cities want to grow into those areas, but county supervisors feel a need to protect their constituents' ranchette lifestyles, he said. "I can't think of any other place where we have the extent of rural residential development that we have in Fresno County," Mintier said. "The important thing in the Fresno County general plan is that they are not committing any more land for rural residential development. And, number two, they are setting some limitations on the buildout of these areas." Public hearings on the Mayor's Alternative 2000 Plan are set to begin in October. The Fresno County Board of Supervisors is scheduled to consider the county's proposed general plan on October 3. Contacts: Jim Patterson, Fresno mayor, (559) 498-1560. Nick Yovino, Fresno development department director, (559) 498-1591. Stan Ediger, Fresno County planning department, (559) 262-4242. Larry Mintier, J. Laurence Mintier & Associates, (916) 446-0522. Leonard Garoupa, Madera County planning director, (559) 675-7821. John Wright, Clovis planning and development services director, (559) 297-2340. Fresno Community Planning Library website: http://www.ci.fresno.ca.us/planning_library/index.html

The State Supreme Court decertified a Second District Court of Appeal opinion that overturned portions of Santa Monica's rent control law. The appellate court ruled that Santa Monica could not modify conditions established by state law under which landlords can increase rents for voluntarily vacated units. The court also held that the city cannot demand more information than state law requires when registering rent-controlled units. (See CP&DR Legal Digest, June 2000.) In reviewing the Costa-Hawkins Rental Housing Act of 1995 (Civ. Code §1954.50), the court found that the state "fully occupied" the field of law governing the right of landlords to establish rental rates, whether or not the units are subject to rent control. Under Costa-Hawkins, a landlord can set initial and subsequent rental rates for new tenancies, even for units subject to rent control. The ruling was a rare loss for Santa Monica, which has successfully defended one of the strictest rent control laws in the state for years. While the outcome of the case remains unchanged, affordable housing advocates applauded the state high court's decision, which means the case cannot be cited as precedent. The court issued its decertification order on August 23. The case is Cabinda v. Santa Monica Rent Control Board, 80 Cal.App.4th 853, 2000 Daily Journal D.A.R. 4989.

If you had traveled north through the Owens Valley before 1924, just past the hamlet of Olancha, you would have come upon an amazing site: a large blue lake in the middle of a high desert landscape. Wedged between the snowcapped escarpment of the Sierra Nevada on the west and the equally imposing mass of the Inyo Mountains to the east, Owens Lake was 15 miles long, 10 miles wide and 30 feet deep. Its saline waters contrasted strikingly with the rugged peaks and arid hills, and supported a large population of waterfowl. The Los Angeles Department of Water and Power (DWP) erased that lake with hardly a thought. Starting in 1913, when the agency's 233-mile-long Owens Valley aqueduct began siphoning off the snow-fed streams that tumbled down the east side of the Sierra, the 800,000-year-old lake dwindled rapidly, its shoreline receding year by year until all that remained by the late 1920s was a salt-encrusted playa. Overshadowed by other aspects of Los Angeles' bold colonization of the Owens Valley, the desiccation of Owens Lake attracted little attention for most of the 20th century. Reporters, novelists and screenwriters found it far more dramatic and entertaining to focus instead on the great human struggle between the valley's doomed homesteaders and the big-city power brokers far away. After all, that conflict involved guns and explosives, intrigue and betrayal —themes much sexier than evaporation. In the end, though, the indignant ghost of Owens Lake proved a more formidable adversary for the DWP than desperate ranchers with rifles and dynamite. Now, work has begun on an expensive and controversial project to put some of the city's water back into Owens Lake. It will not appear as it did before 1924, in the days when ducks thronged its marshes and Cartago was a bustling port instead of a memory. But the lake bed will be wet again and sprout vegetation, thanks to tiny particles of dust. When a lake evaporates, it leaves behind its minerals — the salts and other substances leached from rocks and soil over which feeder streams pass. The water becomes brackish and then briny, and a crust of mineral deposits forms as the lake bed dries. That is what happened when Los Angeles began diverting the Owens River into the aqueduct. And when the wind blew down from the mountains, a frequent occurrence, it whipped the dry lake bed's mineral deposits into stinging, alkaline dust clouds. Although residents of the valley pleaded for help, they were ignored for decades. In 1975, the Navy also began complaining, saying that the huge dust storms were interfering with operations at its China Lake Naval Warfare Center. The complaints led to a 1983 state law directing Los Angeles to study the issue and take reasonable measures to control the dust. Monitoring revealed that Owens Lake was the largest single source of particulate pollution in the nation. At least 300,000 tons of dust blow off the lake bed each year (some estimates put the figure as high as 8 million metric tons). Inhalation of tiny dust and soot particles is linked to premature death and serious illness, especially among the elderly and people with respiratory conditions such as asthma. Analysis showed that the Owens Lake deposits contained such carcinogens as nickel, cadmium and arsenic, as well as sodium, chlorine, iron, calcium, potassium, sulfur, aluminum and magnesium. About 40,000 people living from Big Pine to Ridgecrest were put at risk by the dust clouds. In January 1993, the Environmental Protection Agency classified the Owens Valley as a "serious nonattainment area" under the Clean Air Act's PM-10 standard, referring to particulate matter less than 10 microns in diameter (about one-seventh the thickness of a human hair). The EPA ordered the California Air Resources Board to demonstrate how the standard would be met by early 1997. The board missed the deadline, and residents of the Owens Valley filed a notice of intent to sue. The State Implementation Plan was late because of disagreement between the Great Basin Unified Air Pollution Control District and the DWP. The pollution board wanted Los Angeles to control the dust by flooding 35 square miles of the lake bed with enough water to serve 100,000 families; the city balked at the cost and promised a legal challenge. Litigation was avoided with a compromise plan released in July 1998 and approved by the EPA the following month. Work is now under way on a $62 million contract the city signed in July to carry out that plan The first stage is construction of a 5-foot-wide pipeline that will take water from DWP's aqueduct to the upper end of the lake, where it will be allowed to spread several inches deep across 10 square miles of the dusty playa — essentially turning it into a quagmire. The city has agreed to treat another 3.5 square miles in 2002, 3 square miles in 2003, and a minimum of 2 square miles every year thereafter until the air pollution district determines that the PM-10 standards have been met. Besides flooding, the city intends to plant some of the lake bed in 4- to 20-acre "farms" of saltgrass to bind the loose surface, and cover with gravel any areas that still generate dust. The flooding is expected to use about 25,000 acre-feet of water a year. Irrigation for the saltgrass may require another 15,000 acre-feet, meaning the entire project could use 40,000 acre-feet of water a year — as much water as 80,000 Southern California households would use annually. Where DWP will get the water for the long term is uncertain. The city would prefer not to continue tapping its aqueduct. Buying replacement water from the State Water Project and the Colorado River will cost an estimated $13 million a year. "It's going to come from where it needs to come from," said David Freeman, DWP general manager, who is less interested in discussing water supply details than the "warm and positive" relationship he says has developed between the city and the Owens Valley. "A whole new attitude was born with the settlement," he said. Perhaps. But many Owens Valley residents believe the city eventually will pump more local ground water to compensate for water lost to dust control, further withering the valley's vegetation — an issue that in the past has prompted litigation, not to mention gunplay and decades of bitterness. The DWP's expensive dust control experiment might finally put the ghost of Owens Lake to rest, but it is unlikely to close the book on one of the West's most enduring hydraulic dramas. Contacts: David Freeman, Los Angeles Department of Water and Power: (213) 367-1338. Great Basin Unified Air Pollution Control District: (760) 872-8211. Environmental Protection Agency's Owens Lake PM-10 information: www.epa.gov/region09/air/owens/index.html

An appellate court has ruled against environmentalists in a California Environmental Quality Act lawsuit because the project in question was not approved and because environmentalists did not exhaust their administrative remedies. In a peculiar case from Rancho Cucamonga, the Fourth District Court of Appeal, Division Two, ruled that the lawsuit brought by opponents of a 40-home subdivision was moot because the city denied the developer's design review application for a previously approved subdivision. However, recognizing that the controversy could continue, the court still addressed the merits of the case. That is when the court nailed environmentalists for raising issues on appeal that had not been fully aired before the City Council or trial court. The controversy involved 25 acres in Haven View Estates, a gated community in the western San Bernardino County city of Rancho Cucamonga. In 1990, the city approved a negative declaration and a tentative map with extensive flood control conditions. No one challenged the negative declaration or the map. Seven years later, a new developer, Lauren Development, Inc., submitted a design review application for 40 homes on the site. The Planning Commission approved the application in July 1997. But Cucamongans United for Reasonable Expansion (CURE) appealed to the City Council. The group argued that the city should prepare a supplemental environmental impact report because there was new information regarding on-site habitat for the coastal California gnatcatcher, which was listed as "threatened" under the federal Endangered Species Act in 1993. In September 1997, the City Council denied the developer's design review application and declared that no further environmental review was required. The following month, CURE filed a petition for writ of mandate seeking injunctive and declaratory relief. San Bernardino County Superior Court Judge Frederick Mandabach ruled for the city. On appeal, CURE argued that "new information of substantial importance" arose after the city adopted the negative declaration, warranting further environmental review. But the court sided with the city, which argued that because it did not grant the discretionary approval sought by the developer, further environmental review was unnecessary. "Because the city denied Lauren's design review application which prompted CURE's request for an SEIR, the City was not required to prepare an EIR," Justice James Ward wrote for the unanimous three-judge panel. Thus, the lawsuit should be dismissed as moot, the court ruled. Recognizing that development pressures would remain, the court addressed CURE's lawsuit anyway. Environmentalists had argued before the City Council and the trial court that additional review was needed of impacts on Riversidean alluvial fan sage scrub, which provides habitat for the gnatcatcher. But on appeal, CURE focused on impacts to coastal sage scrub (CSS), which also provides habitat for the rare bird. The city contended that CURE had never previously mentioned coastal sage scrub, so it could not raise that issue now. Environmentalists argued they had raised habitat issues sufficiently. The court sided with the city. "Contrary to CURE's contention that the CSS habitat was sufficiently argued below, the general references to the laws pertaining to conservation of endangered species' habitats were far too general and vague to call specific attention to the alleged loss of CSS habitat. General comments made at public hearings cannot satisfy the exhaustion doctrine," Ward wrote. In an unpublished portion of the opinion, the court held that substantial evidence supported the city's decision against CURE's request for supplemental environmental review regarding seismic stability, potential flooding and slope stability. The Case: Cucamongans United for Reasonable Expansion v. City of Rancho Cucamonga, No. E024244, 00 C.D.O.S. 6102, 2000 Daily Journal 8059, filed July 20, 2000. The Lawyers: For CURE: Craig Sherman, (619) 702-7892. For the city: James Markman, Richards, Watson & Gershon, (714) 990-0901.

Ben Hulse is director of the San Joaquin County Community Development Department. Long a major agricultural center, San Joaquin County has seen subdivisions rapidly replace farms. The population has grown 63% in 20 years to about 583,000. Earlier this year, the county Board of Supervisors unanimously adopted all 13 of Hulse's recommendations regarding implementation of the eight-year-old general plan. Hulse recommended basing general plan implementation on four values: preserving farmland and natural resources; accommodating growth in cities and communities along transportation routes; creating economic development strategies; and identifying and implementing urban limit lines. He also urged preparation of several follow-up reports and ordinances, as well as an approach that includes all cities, agencies and organizations in the planning process. CP&DR What spurred your report and recommendations to the Board of Supervisors? Hulse The county's general plan anticipated a review every 5 to 10 years. This was first review. The board unanimously approved all 13 recommendations contained in the staff report. There are six directives to preserve agriculture in this county. There are four that are directed towards priorities in communication, coordination, cooperation. There is one directed toward economic development and two towards growth and the need to establish urban limit lines. It's a fairly comprehensive package so that we preserve agricultural land and our resources. We've had to initiate the communication, cooperation and coordination that's necessary with all of the cities and with all of the respective agencies so that we have long-lasting programs. We want everybody to buy into the programs so that they in fact do last. CP&DR Why is economic development important when you want to save farmland? Hulse It is very important because we can't continue in this county to have the same sort of development as we've had in the past and pay the bills in the county; you can't preserve agricultural lands if all the people that move here just have low-paying jobs. People with low-paying jobs put more demands on all of the facilities and services of the county to the point where the county then can't afford to preserve the agricultural lands. And it makes good sense if you're going to, as we suggested, direct growth to the cities and to the urban unincorporated areas that have been designated … to be sure that the cities can afford the infrastructure. Because if they can't, then what happens is instead of intensifying growth in the urban areas, and accommodating that growth, it's just gonna spread right out into the agricultural areas. It's important to have all fronts going at the same time in order to preserve agricultural lands. You have to have successful urban areas to have successful rural areas. Interrelated to that is the need to establish new criteria and standards for annexations, which involves the Local Agency Formation Commission, and to establish urban limit lines so we can provide community separators and identify long-term growth needs for all of the urban areas. … If the cities are either unwilling or unable, either because of infrastructure or because of electorate growth control measures, then the county has to determine whether or not the county wants to establish a process for accommodating that growth. I've prepared general plans either as a member of staff or as a director in five counties. This is the fifth. I relate to everyone the need to look into the future and to be cognizant of the potential adverse affects of growth in the future early so that you can prepare for it. CP&DR Can you give me an example? Hulse In Sonoma County in 1975 we told the Board of Supervisors that if the growth in the cities continued and the growth in the county continued, even under the least impact scenario, that Highway 101 was going to be bumper to bumper from the south county line to Santa Rosa by 1995. It was a 20-year projection. The board laughed at us. They said, "That's ridiculous, Highway 101 will never be bumper to bumper. You guys are trying to scare everyone and the scare tactics won't work." Well, we were wrong. It was 1990, not 1995, when it was bumper to bumper. And now no one is laughing. It's a problem that had it been addressed in 1975 by the entire county and all of the cities, something could have been done. Well, we want to preserve agricultural land in this county, and we need all of the cities and all of the agencies to be involved in making that determination. All I did was spin off the work of the Great Valley Center and Rudi Platzek, who is a planner who has studied all this. And you'll find that I've identified the Great Valley Center activities in the report, both in economic development and preservation of agricultural lands, and potential growth impacts. As a planner, I learned a long time ago, plagiarize any chance you get. CP&DR Steal all the great ideas you can. Hulse Hey, it's Planning Survival 101. Anyhow, I looked at what the potential is in this county, and you'll see a couple of scenarios . In particular, you'll see the year 2080. The State of California list of important farmlands identifies a little over 630,000 acres as important statewide. That doesn't include all the grazing lands in the county. We started looking ahead and identified what would happen if the population projections for this county to the year 2080 would take us up to a little over 3 million — what would happen if development continued in the same fashion as it has in the past? We would wind up with about 210,000 acres remaining in this county. That's a loss of 420,000 acres. In addition, the CalFed project proposes to reduce farmland by 120,000 acres in the Delta and convert it to habitat. You add that to the 420,000 you wind up with 540,000. You quickly see that there is only 90,000 acres left. Projections show that by the year 2080, if growth continues in the same fashion it has been and the population projections are realized, that the Central Valley will be importing food. CP&DR That's hard to believe Hulse It was hard for the Board of Supervisors in Sonoma County to believe that Highway 101 would be bumper to bumper. CP&DR Have you made presentations to the cities yet? Hulse Oh yeah. I've given presentations to Lodi, Tracy, Lathrop, Stockton. The other three are scheduled. CP&DR What was the reception? Hulse We're just starting, and the reception for the most part I would say is amicable. Enthusiastic in a couple of instances. As a result of a prior presentation, our Board of Supervisors went down to the City of Lathrop and met with them jointly to talk about community separators, urban limit lines and an annexation proposed by the City of Lathrop because it appeared contrary to the board's principles. CP&DR Is that the annexation for the wastewater treatment plant? Hulse. Yeah. The newspaper reported … that they agreed to disagree. As far as I'm concerned, we had several opportunities and they were all realized. The Board of Supervisors going to the City of Lathrop and sitting down with them and discussing the specific issues of community separators and urban limit lines and, in particular, the annexation was excellent. We realized an opportunity because we had dialogue and interchange between the City of Lathrop and the Board of Supervisors, even in an area where they didn't reach agreement. The very fact that they were willing to listen to each other's position and to consider their positions and be in the same room at the same time is a tremendous event. It opens up the lines of communication for the future. The first city in this county said we will direct our staff to meet with county staff to identify community separators, urban limit lines, and a program for implementation. The door opened. CP&DR Why don't you use the term "greenbelt?" Hulse I chose the term "community separator" because in certain quarters greenbelt and open space carry negative connotations. I didn't want to deal with that negative side. Also, I chose it because I want community separators to be identified as having functions that are of benefit for the entire community. Community separators are to preserve agricultural land, to preserve natural resources, to preserve streams. They are resource utilization areas. … We also need to direct people away from hazardous areas, like floodplains, and we need to provide recreation areas, parks, trails, even linear parks. And those are all utilitarian uses, beneficial uses, that a community separator can provide. Now, we did not identify habitat conservation as an additional benefit because it may or may not be there. We didn't say that this does provide open space and greenbelt areas as a benefit. That's a side benefit, it's not a utilitarian benefit. It also helps communities establish their boundaries and their individual identification, and that's again a side benefit. There are a lot of side benefits. It's easier to sell something to critical thinkers when they can see the utility behind it. If it is esoteric, it's hard to get them to buy in. … A number of people have attributed everything that's going on here to me. I'm just a catalyst. I brought some experience into this position that will benefit this county, and I made some recommendations, some of which are very controversial. Two years ago this wouldn't have happened. CP&DR What has changed? Hulse All of the communities have become more educated, more aware. What I've been able to discuss with has had some influence on them. But I think probably more than anything the fact that we were able to put together a comprehensive report and identify the real true potential for disaster in the future. We realized the need to get started now, and we will. One of our supervisors said you can have all the words and pretty pictures in the world, but if you don't have the political will it isn't going to happen. I've seen that already with the board. CP&DR You can do all this planning and come up with progressive policies, but how much influence does Sacramento County and the Bay Area have on you? Hulse It's already here. If you look around, to the west, to the south, there are growth control measures all over. And so the pressure to develop in this county is increasing. We're not getting pressure out of Sacramento County because Sacramento County is pretty much accommodating the growth. … It's unlike to the west, where more jobs are being created than housing and so we're getting tremendous pressure to build housing in this county. If Stanislaus County has a growth control measure, it will provide additional pressure on this county. The board's policy is to accommodate the growth, but to accommodate it in the cities. Now that was adopted in '92, and my view of the county's general plan is that it is a good general plan, a good solid foundation … we just need to implement it more. I've been doing this work for the last 30 years. Twenty-five years ago we were proposing "smart growth." CP&DR A lot of people seem to think that smart growth is novel. Do you think it's just solid planning? Hulse It's just traditional. If you go through areas that have developed in the United States along transportation routes, railroads or rivers, what are you going to find? You'll find compact communities. Of course, all over Europe — fly over Italy — you'll see how well preserved the agricultural areas are. CP&DR Do you have a timeline of some sort? Hulse Yes. You'll notice that one of the directives says there is a sense of urgency. I saw a window of opportunity of two years. It's down to a year and a half. CP&DR How did you pick two years? Hulse That's just my own evaluation. I've been looking at the political, legal, administrative and technical sides. Technically, we're finally able to identify what the potential disaster was without a doubt so that I could share that potential with everyone. Legally, we need to identify all of the legal sides that are necessary in order to implement the plan, whether it's to charge conversion fees or to purchase development rights to ensure agricultural lands are available for long-term periods if not for perpetuity. And then politically, this county is ready for it now. We can comprehensively bring everybody in and deal with it as the community of San Joaquin County, not as the Board of Supervisors and each individual city. CP&DR Managing Editor Paul Shigley spoke with Ben Hulse at his office in Stockton.

In an important water rights ruling, the state Supreme Court has held that farmers' long-standing water rights superceded water claims by downstream cities. The unanimous court ruled in favor of seven alfalfa and dairy farmers in the Mojave Valley that had refused to join a pact that allocated water to more than 200 farmers, cities and other entities without regard to historical water rights. "This preserves the farmers' position at basically the top of the water chain," Robert Dougherty, the attorney for the farmers, told the Associated Press. "Cities do take a back seat." In the Mojave Valley, nearly everyone relies on the same water source — the Mojave River, which flows mostly underground. The combination of urban development and desert farming has overdrawn the groundwater supply for decades, causing supply and quality problems for those in some parts of the basin. Ten years ago, the City of Barstow and the Southern California Water Company sued the Mojave Water Agency, the City of Adelanto and other upstream entities. Barstow claimed that the upstream users were hurting its water supply by overpumping. The Mojave Water Agency then filed its own suit against nearly all water users in the basin. The trial court stayed the litigation while the parties worked out a stipulated settlement, or "physical solution," that called for reducing water usage over several years. Nearly everyone agreed to the 1996 settlement, which followed the doctrine of "equitable apportionment" without regard to preexisting rights. The trial court imposed the settlement on all parties, but seven farmers, led by alfalfa farmer Manuel Cardoza, appealed. The Fourth District Court of Appeal ruled for the farmers, holding that the trial court could not ignore preexisting water rights. (See CP&DR Legal Digest , July 1998.) In affirming that ruling, Justice Ming Chin wrote for the state's high court: "Although it is clear that a trial court may impose a physical solution to achieve a practical allocation of water to competing interests, the solution's general purpose cannot ignore the priority rights of the parties asserting them." A court cannot change priorities among the holders of water rights or eliminate vested rights, as the trial court did, Chin wrote. Justice Chin cited California Water Service Co. v Edward Sidebotham & Son , (1964) 224 Cal.App.2d 715: "The first one in time is the first one in right, and a prior appropriator in entitled to all the water he needs, up to the amount he has taken in the past, before a subsequent appropriator may take any." However, the Supreme Court also upheld the appellate court's ruling in favor of the stipulated settlement. The stipulating parties can waive or alter their water rights in a manner they believe in their best interest, the state's high court held. That portion of the ruling provided satisfaction for the cities and water districts. "As a practical matter, we have groundwater management throughout the region," James Markman, an attorney for the Hesperia Water District, told the Los Angeles Daily Journal . The Cases: City of Barstow v. Mojave Water Agency , No. S071728; Mojave Water Agency v. Manuel Cardoza , Nos. E018023, E018681, 00 C.D.O.S. 6973, 2000 Daily Journal D.A.R. 9265, filed August 21, 2000. The Lawyers: For Barstow: Arthur Kidman, Kidman, McCormick & Behrens, (714) 755-3100. For Mojave Water Agency: William Brunick, Brunick, Alvarez & Battersby, (909) 889-8301. For Cardoza: Robert Dougherty, Covington & Crowe, (909) 983-9393.