Making clear that the Community Redevelopment Law "is not simply a vehicle for cash-strapped municipalities to finance community improvements," an appellate court has thrown out the City of Diamond Bar's redevelopment plan. A unanimous three-judge panel of the Second District Court of Appeal ruled that Diamond Bar did not prove that its 1,300-acre redevelopment project area suffered from "blight," as defined by the Community Redevelopment Law (Health and Safety Code §§33000 et seq., 33030). The court found that the city, in establishing the redevelopment area, relied on boilerplate language and unsupported findings from a field survey. The court extensively cited another case, County of Riverside v. City of Murrieta, (1998) 65 Cao.App.4th 616, (see CP&DR Legal Digest August 1998) in which a city offered "little concrete evidence of actual conditions of blight." Diamond Bar has asked the state Supreme Court to review the case. In July 1995, the Diamond Bar City Council adopted an ordinance approving a 30-year redevelopment project for 1,300 acres. The city made the legal findings regarding physical and economic blight that presents a burden on the community and "cannot be expected to be reversed or alleviated by private enterprise or governmental action, or both, without redevelopment." Two weeks later, 12 Diamond Bar residents sued the city, claiming that the area was neither blighted nor "predominately urbanized," as required by the CRL. Los Angeles County Superior Court Judge Ernest Hiroshige ruled for the city in what the appellate court called "a terse minute order." The residents made the same arguments to the Second District, which overturned Judge Hiroshige on the question of blight. The appellate panel ruled for the city in one aspect, saying that the area was predominately urbanized because it passed the threshold of containing at least 80% urbanized land. The court found that 1,034 acres, or 79.5 percent of the land, was developed, and 191 acres of vacant land was "an integral part of an urban area." The court then proceeded step by step to address different ways the city tried to prove that the area was blighted. The court shot down all of the city's arguments. The city first argued that the area has unsafe or unhealthy buildings. But the city dropped that argument, which the court said was appropriate because a city consultant's survey found only one structure in need of "extensive rehabilitation." The city then argued that substandard building design, commercial areas with inadequate parking and small parcels inhibited economic development in the project area. But the court said the city did not identify specific buildings and based its determinations on a field survey by consultant Rosenow Spevacek Group, Inc. "At the end of the day, the raw data in the administrative record consists of a series of checkmarks reflecting the field surveyor's ultimate conclusions. The field surveyor's bald conclusions do not amount to tangible proof which can be scrutinized in a meaningful way," Presiding Justice Joan Klein wrote. Delving into the redevelopment project's details, Klein noted that although the city claimed there were buildings and lots of "inadequate size given present standards and market conditions," the city did not plan "‘power centers' in the project area to remedy this purported source of blight. Thus, there is a total ‘disconnect' between the cause of the alleged blight and the proposed remediation." The court also rejected the city's argument that incompatible uses hindered economic development. The identification of industrial uses next to an elementary school was irrelevant, as the city did not prove how the juxtaposition harmed economic development, the court ruled. The court dismissed the city's argument that small and irregular lots under multiple ownership hurt economic development. The city provided no evidence. "In addition," Justice Klein wrote, "although the City contends its commercial areas have been rendered obsolete by the shift toward large scale ‘power centers' and ‘big box' type retailers, as noted, the City has eschewed that type of development. Further, even assuming economic development requires the availability of large tracts of land, the redevelopment area contains a number of undeveloped parcels as large as 47, 41, 36, 35 and 24 acres." Finally, the court dismissed the contention that the project area lacks sufficient infrastructure. The court cited the city's 1995 general plan, which said the city "has a fairly new infrastructure." Redevelopment, the court pointed out, is not intended to deal with future growth. The Case: Barbara Beach-Courchesne v. City of Diamond Bar, No. B130244, 00 C.D.O.S. 3295, 2000 Daily Journal 4391, filed April 27, 2000. The Lawyers: For Beach-Courchesne: Murray Kane, Kane Ballmer & Berkman, (213) 617-0480. For Diamond Bar: Gregory Kunert, Richards Watson & Gershon, (213) 626-8484.

Odd how the fast food joint has become emblematic of what's wrong with the modern world. The recent bombing of a McDonalds in Brittany was widely interpreted as nothing less than a shot across the bow of cultural globalization. Here on our golden shores, discussions about the merits of quick service restaurants are more measured, but the burger and burrito huts can cause high anxiety. Particularly loathed by many are drive-through facilities. These car-friendly land uses have been scoffed at for years by students of the urban form. After all, when it comes to bleating speakers, idling vehicles belching exhaust, and multiple curb cuts, what's to like? Drive-throughs have been banned in a handful of California's municipalities for many years. Now, a new generation of towns — perhaps enthusiastic about neo-traditional and smart growth concepts — have brought drive-through lanes under new scrutiny. And the fast-food industry is armed and ready. In 1999, the battle of the drive-through ended up in the state Legislature, which argued over the merits of SB 1200. The bill, introduced by Senator Charles Poochigian (R-Fresno), attempted to override local government's land use control of drive-through facilities. As proposed by the bill, cities could not prohibit drive-through facilities without the establishment of elaborate and extensive findings. Supported by the California Restaurant Association, the bill's goodwill theme was access rights for the disabled. A much watered-down version of the bill passed in September 1999. The new law simply requires that local agencies specifically notify "blind, the aged, and disabled communities" regarding hearings on permits for drive-throughs. One has to wonder how interested blind people could be in drive-throughs. Santa Barbara and San Luis Obispo have long disallowed drive-through facilities – not only for restaurants, but for banks and all other services. Santa Barbara's ban dates to 1979, and San Luis Obispo's to 1982. Probably not coincidentally, both burgs are known for both the quality and quantity of their pedestrian life. Glen Matteson, a San Luis Obispo city planner, concedes that the argument for the disabled has some merits. He acknowledges that complaints about the lack of drive-through access to fast food restaurants are heard from time to time in his bucolic city, and many complaints are in fact from disabled people. But even though the fast food lifestyle is thwarted in his town, Matteson believes the overall benefits to community remain in place. "Though the term neo-traditional was not yet in use when we passed the ordinance, the sentiment that minimizing automobile access would be an improvement to pedestrian life has seemed to prove true," he says. Like San Luis Obispo, the City of Santa Barbara also uses an ordinance to force hungry families to get out of their mini vans to purchase burgers and fries. Both cities originally used the onus of air pollution to create the legal nexus for the ban. However, using the air pollution approach is not advisable these days. The County of Santa Barbara lost its attempt to use air quality as the reason for denying a drive-through use permit for the popular In-N-Out chain in 1994. In that county, the applicant must demonstrate that the air quality impacts of a project with a drive-through would be lesser than a project without a drive-through to gain a permit. And that is exactly what the purveyor of Double-Doubles proceeded to do. Armed with a CRA-commissioned study (funded by In-N-Out, Carl's Jr., and Burger King) demonstrating that cars idling in drive through lanes for 15 minutes or less are 25% to 40% less polluting than cars that pull into the parking lot, stop, restart and leave a short time later, In-N-Out prevailed in its appeal for a drive-through. Last year, Marin County had more success with a conditional use permit process. Based on careful site review for circulation and parking issues, combined with neighborhood character review and community input, a drive-through for In-N-Out was rejected in the Mill Valley shopping center. According to Tom Lai, principal planner for Marin County, the finding for denial — which went all the way to the Board of Supervisors on appeal — was based in the fact that the site was within a "neighborhood-oriented" center, and a drive-through would endanger pedestrians and harm the character. In-N-Out proceeded with building the restaurant sans drive-through. Of the chain's 143 stores, it is one of only two without a car queue lane. As it stands today, land use authority over drive-through lanes remains with local agencies. Outright bans are still legal. Conditional use permit restrictions are upon what most jurisdictions rely. And Michael Prosio, the Restaurant Association's deputy director of government affairs, said the CUP approach is what its members prefer. "Blanket bans on drive-throughs really don't respond to the specifics of particular neighborhoods, and may preclude what some customers really want. We prefer to be allowed to address site design on case-by-case basis," Prosio said. In other words, the burger barons want the chance to drive their point home. Stephen Svete, AICP, is a principal in the Ventura-based consulting firm of Rincon Consultants, Inc.

In a case watched closely by ranchers and environmentalists, the U.S. Supreme Court has upheld 1995 grazing regulations for public lands, including about 6.7 million acres in California controlled by the Bureau of Land Management. Ranchers challenged Interior Secretary Bruce Babbitt's power to impose the new rules, which ranchers said would raise their expenses and threaten their livestock businesses. But a unanimous Supreme Court, interpreting the 1934 Taylor Grazing Act, 43 U.S.C. §315, said that the changes were not as significant as ranchers feared and that the Interior secretary did not exceed his authority. The court considered three regulatory changes made by Babbitt that changed the definition of "grazing preference," permitted people who are not in the livestock business to get grazing permits, and gave title for all future permanent range improvements to the federal government. The grazing preference issue was foremost for the ranchers, who said they have relied on the previous regulations to establish businesses and qualify for credit. The 1995 regulations make future grazing subject to "an applicable land use plan." But Justice Stephen Breyer, writing for the court, said ranchers were never guaranteed grazing rights into perpetuity and noted that the secretary has always had the authority under the Taylor act to withdraw rangeland from gazing use. As for who gets grazing permits, Breyer wrote, "The new change is not as radical as the text of the new regulation suggest. … Those in the business continue to enjoy a preference in the issuance of grazing permits." Ranchers fear that environmentalists will buy up grazing rights only to sit on the land. However, the court noted, "New regulations allowing issuance of permits for conservation use were held unlawful by the Court of Appeals and the Secretary did not seek review of that decision." As for the improvements, the secretary has the right to grant the federal government ownership, but permit holders can still own removable improvements, such as corrals, feeders, chutes and troughs, the court held. The case is Public Lands Council v. Babbitt, No. 98-1991, 00 C.D.O.S. 3782, 2000 Daily Journal 5055.

The U.S. Ninth Circuit Court of Appeals has ordered preparation of an environmental study on an already-completed freeway interchange in Washington state. On a 2-1 ruling, the three-judge panel said that the project was not exempt under the National Environmental Policy Act. "While we decline to order the interchange torn down, we direct the district court to order the requisite environmental review …" the court concluded. In 1985, the City of DuPont, between Seattle and Tacoma, identified the need for a new freeway interchange to serve a proposed Intel campus and a 3,200-acre, master-planned development proposed by Weyerhaeuser. Ten years later, the Federal Highway Administration granted preliminary approval for the South DuPont interchange subject to environmental review of the project. The state Department of Transportation planned a two-stage project. The first stage involved construction to allow access to the Weyerhaeuser project. Stage Two would entail a more complete interchange, rerouting of connector roads and reconstruction of an existing, nearby interchange. The transportation department prepared environmental reports analyzing the effects on the Fort Lewis landfill (a former Superfund site), air quality, cultural resources and two endangered species. In April 1996, the state and the Federal Highway Administration (FHWA) released a joint environmental document that concluded there would be no significant environmental impact, and said they had satisfied the criteria for both a "documented categorical exclusion" under NEPA and a Notice of Nonsignificance under Washington's State Environmental Policy Act. Construction followed. Arthur West, an attorney from Olympia, sued, claiming the project was not exempt from NEPA. District Court Judge Robert J. Bryan dismissed West's claims. When West appealed, Weyerhaeuser argued that the lawsuit was moot because Stage One of the project was in place. But the Ninth Circuit said the controversy was live. The court noted it could still order additional environmental review and even order "the interchange closed or taken down." Plus, Stage Two construction had yet to begin, noted the court, which then moved to the merits of the case. West argued that the highway administration should have prepared an Environmental Impact Statement or an Environmental Assessment under NEPA, 42 U.S.C. §4332. But the state and federal agencies contended the project qualified for a documented categorical exclusion (DCE) because federal highway regulations list "approvals for changes in access control" as an example an exempt project. The court said, "‘Approvals for changes in access control,' however, is not defined in the regulations, the legislative history, or case law." Judge Betty Fletcher continued, "None of the examples listed in the DCE regulations approaches the magnitude of this project — an entirely new, $18.6 million, four-lane, ‘fully-directional' interchange constructed over a former Superfund site and requiring 500,000 cubic yards of fill material, 30,000 tons of crush surfacing and 32,000 tons of asphalt concrete pavement. To the contrary, the other examples provided in 23 C.F.R. §771.117(d) suggest that the FHWA intends a very different scale of project to escape the more detailed environmental review that would occur in an environmental assessment." "The FHWA regulations forbid the use of a categorical exclusion for projects that will have ‘significant impacts on travel patterns,'" Fletcher wrote. "The new South DuPont interchange was designed with the intent that it have significant impacts on travel patterns." A fuller environmental review might identify mitigation measures that could still be implemented or could alter plans for State Two, which also must have further study, the court ruled. In a dissent Judge Sidney Thomas said the case was moot. "The environmental damage of which Mr. West complains has been accomplished … No order of this Court can alchemize concrete and asphalt into blueprint," he wrote. Thomas further said that the highway administration's interpretation of its own regulations was "not plainly erroneous" and, thus, should be upheld. The Case: Arthur S. West v. Secretary of the Department of Transportation, No. 97-36118, 00 C.D.O.S. 2171, 2000 Daily Journal D.A.R. 2967, filed March 20, 2000. The Lawyers: For himself: Arthur West, Olympia, Washington. For federal agencies: Brian Kipnis, Department of Justice, Washington, D.C. For state agencies: Deborah Cade, assistant attorney general, Olympia. For Weyerhaeuser: George Kresovich, Hillis, Clark, Martin & Peterson, Seattle.

Two events will shape Stanislaus County planning and development issues this year: a proposed ballot initiative to rein in urban sprawl, and a plan to encourage business development in an unincorporated community north of Modesto. Proponents of the farmland-protection initiative have until May 11 to gather signatures to place it on the November ballot after the county Board of Supervisors refused to do so. Sponsored by the group GOAL (Growth: Orderly, Affordable, and Livable), the measure would establish 30-year urban limit lines that coincide with those set in the general plan of each city and the county. How that initiative, if approved, would affect potentially controversial plans for extensive commercial and residential development in Salida, north of the Modesto city limits, is uncertain. The proposed initiative has one feature that might be unique: it gives elected officials the option of amending general plans that block development in one area to add another development area to the general plan. In other words, more development could be accommodated if another area is declared off limits. The urban limit lines could also be changed by a vote of the electorate, according to Bruce Frohman, a Modesto City Councilman and a member of GOAL's board of directors. Frohman is optimistic that the group would get 11,000 valid signatures needed to place the measure on the ballot. GOAL's members contend that too much of the county's valuable farmland is being used for development. The measure is known as both the FOOD Initiative, which stands for Future Options on Development, and more officially as FSI, the Farmland Stabilization Initiative. The measure will definitely be on the ballot in Turlock this November and in Modesto in November 2001. The city councils in Turlock and Modesto, the county's largest cities agreed to put the FSI to a vote. But those measures will not take effect unless the county measure gets on the ballot and passes. Voters in the county's smaller cities could get a chance to vote on it in elections scheduled for November, or in 2001 and 2002. County Supervisor Nick Blom does not expect FSI to qualify for the ballot. Blom, a farmer, and said the FSI would tell him how to use his land. "You're taking my property rights away," he said. He noted that an earlier GOAL-sponsored proposal, Measure F, was soundly defeated by voters about eight years ago. That measure, Frohman explained, would have changed general plans to stop conversion of farmland to urban use. In contrast, FSI respects the boundaries set by general plans that are in effect. "It lost because it was too restrictive," he said. "I thought it was too restrictive." Modesto, which is home to 182,000 of the county's 450,000 residents, could conduct the key the election. Frohman said two things favor the current initiative: county officials' failure during the past three years to develop a specific proposal on future land use, and anger in Modesto over the implementation of Measures P & Q. Frohman said that the FSI initiative was to be on the ballot last year. But GOAL postponed things for a year because county officials asked for more time to develop their own specific proposals through what they call their visioning plan, which was intended to address land use, education, transportation and other issues. Under city council-sponsored Measures P and Q, voters in Modesto were asked in November 1997 approve the extension of sewer lines to properties that had already been annexed into the city but had not been subjected to a public vote, as an earlier ballot measure had specified. Those measures would have provided sewer service to 2,500 acres on the fringes of the city that would support 4,000 homes. Measures P and Q both lost by wide margins, but the City Council continued to approve the extension of sewer lines into the area, claiming that state laws required them to do so because properties had already been annexed into a city (See CP&DR, January 1998). Voters in the same November 1997 election approved Measure M, which was intended to tighten loopholes in Measure A, an advisory vote passed in 1979. Measure A required the city to conduct elections before extending sewer lines to new developments. Measure M was also an advisory vote, so GOAL and its allies were not able to force the council to heed it. Frohman said there has been a lot of new development on the north side of Modesto in the past two years, and many people are angry because they voted against it when they defeated Measures P and Q. "They're not trusting their elected officials," Frohman said. Supporters and opponents disagree on how the FSI could impact another hot issue in the county: a community plan update for Salida, an unincorporated area just north of Modesto. Salida has a current population of 12,000 but is projected to grow because of its proximity to Highway 99. While much of Modesto has been built out, county supervisors see the agricultural areas around Salida as a place to add businesses and jobs. Many Modesto residents now make long commutes to jobs in the Bay Area. Several years ago, Modesto city officials eyed the Salida area for future expansion. But efforts to expand Modesto's sphere of influence were shot down by the Stanislaus County Local Agency Formation Commission, according to Modesto City Council member Kenni Friedman. The Board of Supervisors is scheduled to consider the Salida Community Plan Update this month, when a draft environmental impact report on it is released. The update is supposed to guide development in the area for the next 20 years. The Salida Community Plan update was first presented to the Board of Supervisors a year ago and projected a great deal of residential growth. But supervisors sent planners back to the drawing board, saying they wanted more business development. Of the 5,500 acres that are part of the community plan, about 1,800 acres would be set aside for business parks, according to the new plan, which officials were hesitant to discuss. The new plan would allow Salida to grow to about 21,000 by 2020, down from original estimates of 37,000, according to the Modesto Bee. Modesto supports the revised plan for Salida because it would increase local employment, according to both Blom and Friedman. A tax agreement for the area provides that approximately 75% of the tax revenue will go to the county, and 25% to Modesto for providing water and other services. "We want to partner with the county on this," Friedman said. Frohman said that the Salida Community Plan will not be affected by the Farmland Stabilization Initiative if it passes, because the area has already been designated in the county's general plan for growth. Blom disagreed. "If it passes, it will waste all the time we've spent ," he said. Contacts: Bruce Frohman and Kenni Friedman, Modesto City Council, (209) 571-5169 Nick Blom, Stanislaus County supervisor (209) 525-6560 Ron Freitas, Director of Planning and Community Development, Stanislaus County, (209) 525-6330

Voters in Culver City rejected an initiative that would have blocked a downtown redevelopment project, while voters in Benicia overwhelmingly approved an open space protection measure during April 11 special elections. The split decisions on growth follow March 7 balloting, when three-quarters of slow-growth measures failed. In Culver City, which lies a few miles north of Los Angeles International Airport, Measure M received only 32.8% of the vote. The complex Save Our Schools Initiative would have prohibited certain uses, such as parking garages, theaters and liquor stores, within 400 feet of schools. Measure M was aimed at a downtown redevelopment project called Town Plaza that is planned to include a large theater, retail stores and a parking garage. City officials vigorously fought the initiative, which they said would "kill efforts to bring downtown back to life." Initiative proponents said they wanted to protect schoolchildren from "unrestrained commercial development" and complained about city subsidies for retailers. In Benicia, a Solano County city along the Bay, 88.6% of voters backed a very different Measure M. This one will require voters to approve development or sale of city-owned land designed as open space in Benicia's 1999 general plan. The measure does not apply to private property but does affect dozens of city-owned parcels, including some very small ones, throughout Benicia. Controversy last year over a city proposal for a 50-unit affordable housing development on a grass field in the Southampton subdivision spurred the measure, which the City Council placed on the ballot. Some environmentalists questioned the measure, saying it would discourage infill development.

There is no doubt that the Sacramento metropolitan area is awash in retail shopping development, but whether or not the region is facing an excess of retail stores is subject to debate. The question arises while a 1.1-million-square-foot regional mall prepares to open in Roseville this summer, and regional malls of similar size are proposed in Folsom and Elk Grove. Plus, the City of Sacramento continues to consider large-scale downtown retail development. In three recent studies performed for the City of Sacramento, David Wilcox of Economics Research Associates, warned that the region faces an unhealthy glut of retail shopping development. Wilcox examined a fast-growing four-county area (Sacramento and Yolo counties, south Placer County and western El Dorado County) with about 1.7 million people, and compared it to similar-sized metropolitan regions. "What I found was just this enormous amount of retail space that is being built, or has been built in the last five years," Wilcox said. "Then there was this whole huge amount of place-holder projects there was being proposed. … Sacramento would have a massive amount of retail if all of these speculative proposals would get built." Some analysts contend that retail development is only following the residential and industrial growth that has occurred in the lower foothills east of Sacramento. Indeed, Wilcox found that power centers (collections of big-box stores such as Home Depot and Wal-Mart) have closely followed residential subdivision development in the Placer County cities of Roseville and Rocklin, where the population has more than tripled during the last 20 years to approximately 110,000. Plus, there is a great deal of additional wealth in the area thanks to an increase of high-tech jobs. Roseville Planning Director Patty Dunn said she sees no problem, at least in her rapidly growing town, which is a net importer of jobs. "We've really striven to have a balance of land use. Right now, in terms of commercial zoning, we might have a little bit of an overage. Based on models, about 80% of it will be absorbed by 2020," Dunn said. "But if you look at most city or county general plans, you see a little bit of an overage in commercial because residential typically is absorbed much faster." The cities of Roseville and Rocklin, on the I-80 corridor, and Folsom, along Highway 50, will see 2-million-square-feet of retail space open this year alone, Wilcox said. The largest project is the Galleria at Roseville, a 1.1-million-square-foot regional mall aimed at higher end shoppers. Nordstrom, Macy's, J.C. Penney and Sears will anchor the Galleria. Across the street from the Galleria at Roseville is proposed Creekside Town Center, a 400,000-square-foot power center. The Galleria at Roseville undoubtedly will compete with Sunrise Mall, about six miles west in Citrus Heights. Sunrise has served the region for decades and recently underwent a $10 million facelift. Less than 15 miles south of the Galleria at Roseville and about six miles east of Sunrise Mall lies the site of the proposed Broadstone Mall in Folsom. The city approved the 1.1-million-square-foot regional mall in 1991, but it has yet to be built. However, Broadstone Plaza, a smaller retail and entertainment center, is scheduled to open before year's end in Folsom, whose population has more than quintupled to about 50,000 in the last two decades. While all of this retail development plays out in Sacramento's eastern suburbs, the southern suburb of Elk Grove, which voted last November to become a city, is the site of a proposed 1-million-square-foot regional mall called Lent Ranch Marketplace. Although Lent Ranch could divert Elk Grove shoppers from south Sacramento's retail opportunities along Florin Road, Lent Ranch would have little other competition within close driving distance. In Sacramento itself, city officials have had to consider new retail proposals in North Natomas, a collection of farms along I-80 and I-5 where long-planned development is finally becoming reality. Some North Natomas landowners requested that their property be rezoned from industrial and office designations to commercial. The landowners proposed six of what ERA's Wilcox called "intercept centers" ranging from 250,000 to 680,000 square feet apiece. Landowners said commercial development would do more for city finances than office buildings. But Wilcox said the proposed commercial centers would seriously harm the prospects for neighborhood shopping centers that are planned throughout North Natomas, which is projected to have a build-out population of 60,000. In late March, the Sacramento City Council refused to approve the rezoning and stuck with the North Natomas plan. The Sacramento council also has continued to focus on the long-struggling, pedestrian-only K Street Mall. Westfield Corp. has recently consolidated much of the mall under one ownership for the first time, and in March Westfield hired renowned architect Jon Jerde to create a plan for about seven blocks of the K Street Mall from the Downtown Plaza to the Sacramento Community Convention Center. Both the Plaza, an enclosed shopping mall, and the Convention Center received major upgrades during the 1990s, but the K Street Mall still languishes, especially at night and on weekends, when state office workers are absent. The City Council had been weighing plans of Mills Corp., a Virginia-based developer, for a mixed-use project on an old railroad yard just north of downtown. Wilcox, however, said that the retail aspect of the Mills project would have competed with the K Street Mall effort. The potential conflict was solved when Mills withdrew its plans at about the same time its request for a $75 million city subsidy was reported by the Sacramento Bee. Contacts: David Wilcox, Economics Research Associates, (310) 477-9585. Patty Dunn, Roseville Planning Department, (916) 774-5276.

A garbage company does not have legal standing to file a lawsuit regarding the environmental review of a competing company's landfill plans, the Third District Court of Appeal has ruled. The three-judge panel unanimously voted to dismiss a suit filed by Waste Management of Alameda County. Waste Management argued that Alameda County should have required environmental impact report before allowing Browning-Ferris Industries to accept "designated wastes" because the county required Waste Management to prepare an EIR for a similar project. But the appellate court concluded Waste Management was only pursuing its economic interests, which was not adequate to maintain a lawsuit under the California Environmental Quality Act. The dispute arose from BFI's proposal to accept "designated wastes" within the meaning of State Water Resources Control Board regulations (essentially, all nonhazardous solid wastes) at BFI's Vasco Road Sanitary Landfill in the hills east of Livermore. The county determined the project was exempt from CEQA review because it involved only a minor alteration to an existing use. Both the San Francisco Regional Water Quality Control Board and the state Integrated Waste Management Board gave permission for BFI to accept designated waste. However, when Waste Management had earlier sought permission to accept designated wastes at its Altamont landfill four miles east of BFI's facility, the county had required an EIR. Waste Management filed a lawsuit. Sacramento County Superior Court Judge Cecily Bond ordered an environmental review of BFI's plans and ordered BFI to stop accepting designated wastes. The appellate court overturned Bond's ruling A party can bring a lawsuit if it has a beneficial — i.e. direct — interest in a matter. Waste Management did not such an interest, court said. "An interest, including a financial or commercial interest, which is not within the zone of interests to be protected or regulated by the asserted legal duty can only be an indirect interest from the standpoint of the law. It has been clear throughout this litigation that Waste Management's interest is commercial and competitive," Presiding Judge Arthur Scotland wrote. "CEQA is not a fair competition statutory scheme." Simple logistics also were not adequate to establish Waste Management's beneficial interest, the court ruled. There was insufficient evidence to argue that BFI's acceptance of designated waste would have environmental consequences for Waste Management's landfill, which is on the other side of the mountain range, the court said. Waste Management also argued that it could bring a "citizen's action" that was intended to enforce a public duty. But the court said that a corporation is not a "citizen" and that Waste Management "has shown no demonstrable interest or commitment to the environmental concerns which are the essence of CEQA …" Because it ruled that Waste Management lacked standing to bring the lawsuit, the court did not rule on the merits of the case. The county had argued that the two landfill projects were dissimilar because Waste Management's plans involved expanded acreage and other operating changes. The Case: Waste Management of Alameda County v. County of Alameda, No. C024917, 00 C.D.O.S. 2972, filed April 17, 2000. The Lawyers: For Waste Management: Michael Zischke, Landels, Ripley & Diamond, (415) 512-8700. For Alameda County: Lorenzo Chambliss, Senior Deputy County Counsel, (510) 272-6703 For Integrated Waste Management Board: Matthew Campbell, deputy attorney general, (916) 327-2477. For Browning-Ferris: Scott Gordon, Bruen & Gordon, (925) 295-3131

When two companies contribute to groundwater pollution, one company cannot avoid cleanup costs by arguing that the other company would have spent money on the cleanup anyway, the U.S. Ninth Circuit Court of Appeals has ruled. The decision came in an Oregon case interpreting the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), better known as the Superfund law. To let one company avoid cleanup costs "would encourage parties to avoid investigating and cleaning up contamination to which others as well as themselves contributed," the court ruled. "A party that had discharged into a mixed plume could wait for another discharger to incur the costs of investigation, and have a fair chance of leaving the other polluter stuck with the entire bill." The court also ruled it is acceptable to apportion cleanup costs — when two companies are responsible — based on the amount of each parties' contamination. The case stemmed from two industrial properties in Portland, Oregon. Boeing Company had a 151-acre airplane part factory, and Cascade Corp. made lift truck attachments on a 6-acre parcel about 200 feet away. In the mid-1980s, both companies became aware of groundwater pollution from chlorine-based solvents that both companies used and disposed of on their sites, and the companies worked together on a state-supervised cleanup. Of three aquifers below the sites, one had been polluted by both companies. Boeing sued Cascade, seeking a contribution from Cascade and a declaratory judgement allocating future expenses. U.S. District Court Judge Malcolm Marsh ruled for Boeing. Because even a Cascade consultant testified that the company created 70% of the plume of contamination, Judge Marsh ordered Cascade to pay 70% of cleanup costs. On appeal, Cascade argued that it should not be liable because Boeing would have incurred the cleanup costs even if Cascade had not contributed pollution to the aquifer. Cascade argued that it could be held liable only if its release of contaminants forced the cleanup. But a unanimous three-judge panel of the Ninth Circuit rejected Cascade's argument. "One of he goals of CERCLA was to ‘affix the ultimate cost of cleaning up these disposal sites to the parties responsible for the contamination.' To leave one party shouldering the entire cost of investigation and remediation while another rides for free frustrates this goal, rather than ensuring that those who caused the contamination pay their fair share of the costs associated with clean-up," Judge Andrew Kleinfeld wrote. As for allocating the costs, the court made clear that the trial judge had great discretion. In a Fifth Circuit opinion, In re Bell Petroleum Servs., Inc., 3 F3d 889 (1993), the court held that "volume may be a reasonable means of apportioning liability." The Ninth Circuit called Judge Marsh's 70:30 decision "among the reasonable conclusions supported by the evidence." The court also ruled that a declaratory judgement, which in this case apportions responsibility for past and future cleanup costs, is appropriate. The Superfund law does not address declaratory judgements in cases where two parties are responsible for the pollution. But, wrote Kleinfeld, "CERCLA was intended to encourage quick response and to place the costs on those responsible. Declaratory relief serves these purposes because all parties, like those in this case, will know their share of costs before they are incurred. The more liability can be limited and quantified, the more practical it is for a party to budget and borrow to finance it." The Case: Boeing Company v. Cascade Corporation, Nos. 96-35246, 96-35304, 00 C.D.O.S. 2321, filed Marsh 24, 2000. The Lawyers: For Boeing: David Bledsoe and Mark Schneider, Perkins, Coe, (503) 727-2000. For Cascade: George McKallip, (503) 228-6191.

The Governor's Office of Planning and Research is insisting that cities and counties file annual general plan progress and implementation reports, but many local planners are questioning the mandate. Some planning directors do not want such reports to become political fodder because they have the potential to reflect badly on a local jurisdiction. Others say preparing an annual report is a bureaucratic exercise that takes time away from more worthwhile planning. The California County Planning Directors Association has appointed a committee to meet with OPR to talk about making the process more meaningful. Last October, OPR sent letters to every city and county requesting that they file an annual report "on the status of the General Plan and progress in its implementation." Government Code §65400(b) requires such reports be prepared for city councils and boards of supervisors and sent to OPR every year by July 1, according to the letter, which was signed by OPR Director Loretta Lynch. "This is important to OPR because we are supposed to be the statewide planning agency," OPR Senior Planner Terry Roberts explained recently. "We see a lot of trends in the state and we need to see how the local general plans are dealing with these trends." Only a handful of jurisdictions were filing the annual reports with OPR, she said. Planners from about 90% of California cities and counties responded to the October letter, but not necessarily in the fashion OPR wanted. Planners either said they were unaware of the mandate, did not have the time or resources to prepare a report, or requested a standard form that OPR is supposed to make available. In the end, only about 200 of 445 jurisdictions (charter cities are exempt) filed progress reports. So OPR undertook a telephone survey early this year to learn more about why local planners were not preparing the annual reports, and inquired about the status of general plans themselves. Letters, which some people viewed as threatening, followed the survey. "We were just trying to set the record straight," Roberts said. The letters, dated February 29, were attached to a seven-page memorandum explaining the purpose behind annual reports, how the state uses the reports, and guidance for preparing reports. The letters followed a rather tense meeting between OPR staff members — but not the OPR director — and local planning directors, who complained about a lack of technical assistance or funding from the state. Tim Beals, who heads the county planning directors group, said the process should not be only a paperwork exercise to satisfy a state mandate, and he worried the reports eventually might be used against county planners. Alex Hinds, Marin County Community Development Agency director, said the planning directors have had only preliminary discussions with OPR. "I think it's a good exercise to do a general plan status report," he said. Marin County has prepared a comprehensive general plan status report as it gets ready to begin an update of its six-year-old general plan, he said. A meaningful report evaluates the general plan and show how the plan is really used, Hinds said. However, the annual nature of the requirement is a problem, and some jurisdictions just go through the motions, Hinds said. He and others said local planners get too busy with other responsibilities to worry about filing a report with the state. "Why would they care and what difference would it make for us?" said Denis Cook, Yuba City community development director. "We'd rather focus our efforts on what needs to be done for the community." The City of Escondido was one of the jurisdictions that has prepared annual reports for the City Council and Planning Commission but has not forwarded the reports to OPR, said Jonathan Brindle, assistant planning director. The report is a good management tool and it lets decision-makers follow what is happening. However, the city uses other tools to track land-use and projects. "It's a burden to prepare a report every year," Brindle conceded. In the City of Chico, which adopted a new general plan in 1994, annual progress reports have become something that the community expects, said Senior Planner Tom Hayes. "We found them pretty easy to do, particularly after the first one. We got a method set up. We use GIS. And it just becomes almost like filling in the blanks," Hayes said. The city's general plan annual reports include a matrix with all 350 implementation measures. The city did a five-year review in 1999 that includes the matrix, an extensive discussion of current planning issues in the city, and an update on implementation projects. "Although this is a little time consuming, it provides a good tool for developing and monitoring our work program, particularly as we develop the annual planning budget," Hayes said. The reports are particularly helpful for tracking land capacity and availability, he added. Also this year, OPR sent letters to 77 cities and eight counties noting that they had not comprehensively updated their general plans it at least 10 years and had indicated they had no intention of updating plans in the immediate future. Why not, OPR asked. "We're not the general plan policemen here, but we have a right to ask these questions and get an honest answer," Roberts said. "It wasn't as if all of a sudden this has become a priority for OPR." Yuba City's Cook suggested OPR might want to back off a little. Yuba City has not completed a general plan overhaul since 1989 but will probably commence an update in a year or two. He said the 11-year-old general plan continues to serve the city well, especially as the city has kept related implementation measures, ordinances and fees up to date. ----- Exactly who is in charge of OPR these days appears to be getting clearer. Loretta Lynch, whom Gov. Davis named as OPR director in March 1999, was appointed to the Public Utilities Commission in December. At about the same time, Davis named Steven Nissen, a special assistant to the governor for innovation in government, as "acting staff director" at OPR. But Lynch, a lawyer with little land-use experience, did not resign from OPR after her PUC appointment and correspondence continued to go out under her signature. However, on April 18, Davis named Nissen as the acting director of OPR, and Nissen began moving into the executive's office. Nissen was executive director of the California State Bar from 1997 to 1999, and previously was executive director of Public Counsel, a large pro bono law office. Contacts: Terry Roberts, Governor's Office of Planning and Research, (916) 322-2318. Tim Beals, Sierra County Planning Department, (530) 289-3251. Alex Hinds, Marin County Community Development Agency, (415) 499-6269. Tom Hayes, Chico Community Development Department, (530) 895-4853. Jonathan Brindle, Escondido Planning Division, (760) 839-4543. Denis Cook, Yuba City Community Development Department, (530) 822-4700.

Los Angeles is the second-biggest city in the United States, but nobody who lives there has ever seemed especially proud of this fact. For many community activists the city's size has always seemed like an annoyance. L.A.'s neighborhood groups — especially homeowner associations in the San Fernando Valley — have complained for decades that the downtown City Hall bureaucracy is too remote and unresponsive to meet the needs of the city's varied neighborhoods, especially when it comes to planning issues. While threatening secession, the homeowner associations alternatively have agitated for a shifting of planning power out of City Hall. In particular, these groups have repeatedly called for a decentralized system of elected planning commissions with real decision-making power. Under the provisions of the new city charter — which go into effect July 1 — planning power is moving downward, but not as neighborhood associations wanted. The new charter does create decentralized planning commissions with real power, but they're not elected. The new charter also creates a system of Neighborhood Councils, but the existing homeowner associations won't automatically fill those slots. And even as power is decentralized, it's also being centralized, because the mayor will have ultimate control over both of these community-level systems. Los Angeles's 75-year-old charter created a weak mayor and 15 strong city council members with large districts (nearly 250,000 people in each) who can effectively serve as "mayors" of their districts. The impetus to revise the charter came from the homeowner associations and Mayor Richard Riordan, a take-charge business executive frustrated by his office's lack of authority. The charter revision — shaped jointly by two charter reform commissions and approved by voters last year —sought to create a subtle balance between centralizing power in the mayor's office and decentralizing it in the neighborhoods. On the one hand, a stronger mayor was clearly needed, but L.A.'s traditional aversion to machine politics meant that the new charter would be doomed if the mayor got too strong. On the other hand, wholesale decentralization might please neighborhood activists, but it could diffuse power too much to get anything done. "The idea," says political scientist Raphael Sonenshein, who was executive director of one charter commission, "was to increase public input and still have a government." The downshifting of power takes two forms. It's a variation of sorts on neighborhoods activists' longstanding desire to have more direct control over city decisions generally and land-use matters in particular. First, garden-variety land-use decisions — traditionally handled by the city Planning Commission, with an easy appeal to the City Council — will be transferred to seven newly formed "area" planning commissions representing different parts of the city. It's important to note, however, that the "APCs," as they will be known, do not really represent a wholesale decentralization of planning authority. The seven areas are quite large, averaging 66 square miles apiece. The commissions do not have any policy-making power; instead, they simply assume the current Board of Zoning Appeals' role. And to the disappointment of the homeowner associations, these commissions won't be elected; they'll be appointed by the mayor with council confirmation. Indeed, in certain ways the APCs centralize mayoral authority at the City Council's expense. The new system eliminates the council from routine decisions, such as conditional-use permits. The APC boundaries are not co-terminus with council district line. In most cases, APCs will cover portions of several council districts. That alone will dilute a counilmember's ability to dictate these decisions. Beyond that, most APC decisions will not be appealable to the City Council. Rather, Area Planning Commission decisions will be appealable only to the city Planning Commission — a body also under the mayor's control. The goal is to de-politicize routine decisions, which in the past have gotten caught up in the City Council's parochial politics. In addition to creating APCs, the new charter increases neighborhood-level power in one other way — by requiring the city to designate and empower dozens of Neighborhood Councils. Neighborhood Councils will not be decision-making bodies. Rather, they'll serve as advisory panels and lobbying groups on behalf of individual neighborhoods. Exactly how many Neighborhood Councils will exist, and what their roles will be, remains undecided. But these questions, too, are the mayor's to answer. The charter creates a Department of Neighborhood Empowerment and a Board of Neighborhood Commissioners to set up and operate this Neighborhood Council system and places both the department and the board under the mayor's control. Much more than the Area Planning Commissions, the Neighborhood Council system holds the potential to be the decentralized source of power that the homeowner associations seek. Yet the L.A. system is likely to be different from the most prominent neighborhood council system in the nation — New York City's system of community planning boards. Los Angeles considered a similar community board proposal during the late '80s but instead created citizen advisory committees appointed by city councilmembers, thus strengthening City Council power rather than diluting it. New York has 59 community planning boards — one for each community plan area in the city. Each board has dozens of member, all appointed by the Borough president with considerable input from city councilmembers. As the "first stop" for developers, the community boards must conduct hearings on all land-use applications and forward a recommendation to the city Planning Commission. In New York, the community board process typically slows the approval process at the beginning because the board might haggle with a developer for several months at the hearing stage. Also, many projects must be reviewed by two or three boards. But community board support can benefit a developer at the city Planning Commission. L.A.'s Neighborhood Councils may or may not have similar influence, depending on how the Board of Neighborhood Commissioners sets up the system. Under the charter, the City Council may delegate public hearing authority to these councils but is not required to. The councils are supposed to deal with all issues, not just planning. And they are supposed to get city funding for operations. Beyond that, the number, composition, selection, and operation of the Neighborhood Councils is up to the Board of Neighborhood Commissioners. Although there are 35 community plan areas in L.A. (compared to 59 in New York), the city may designate 100 or more Neighborhood Councils. And, much to the disappointment of long-standing homeowner associations, the charter makes it difficult for existing groups to simply appropriate Neighborhood Council status because it requires each council to represent all stakeholders. Many unknowns about how charter reform will affect land-use planning remain. The APCs are supposed to stick to quasi-judicial actions, but surely they'll be chomping at the bit to deal with policy issues too. The Neighborhood Councils are supposed to be broad-based and deal with a range of issues, but some homeowner associations will surely push them into the land-use planning arena. More than ever before, the City Council is supposed to butt out of routine planning decisions, but they're not likely to give up power readily. About the only thing we know for sure is that, somehow or other, planning power will be decentralized in Los Angeles under the new charter. And how this works out will probably serve as the litmus test on the question of whether L.A.'s residents will be better served by a single, decentralized system controlled by the mayor, or a wholesale breakup of the biggest city in the West.

George B. Brewster has served as executive director of the California Center for Land Recycling since its founding in 1996. The nonprofit organization advocates sustainable community development and provides programs to facilitate redevelopment of brownfields, which are abandoned or underutilized sites hampered by real or perceived contamination. Brewster has an extensive background in real estate development, asset management and finance, and he serves on the Urban Land Institute's Infill Development Forum and Environmental Council. The ULI published his book, The Ecology of Development: Integrating the Built and Natural Environments, in 1996. CP&DR "Smart growth" has gained attention among mainstream audiences in recent times. Has there been a related rise in interest in brownfield redevelopment? Brewster The short answer is yes. We talk about land recycling, rather than brownfields. We look at it as the key to smart growth. Basically, land recycling is abut redirecting growth from the fringe to the core of urban areas, and that means, in turn, re-looking at sites that have been bypassed or previously used. CP&DR Have skyrocketing real estate values, especially in the Bay Area, focussed attention on land re-use? Brewster Certainly. It's double-edged sword. The good news is that for well-located, close-in parcels that have been bypassed in the past because of perceived or real environmental impairment, the cost of cleanup becomes less and less of a factor in the development decision. The development community is redeveloping brownfield sites at an increasing rate. The other side is the public sector and nonprofit entities who, with some notable exceptions, like Los Angeles and Long Beach, San Jose, Emeryville, look at brownfields as something to be avoided rather than as an opportunity. CP&DR In a 1998 CCLR policy paper you wrote, "Public policy reforms must provide the foundation for ongoing, large-scale land recycling." Is that happening in California? Brewster Let's talk about what public policy reform means. You have got to deal with both public safety and environmental health, and with economic issues. We looked at what other states have done … and we found that successful programs had three things in common: one was liability protection, the second was regulatory simplification and the third was financing. On the liability front, what you're trying to do is deal with the unintended consequences of Superfund. Superfund was designed to punish polluters and to discourage future pollution. Anyone who gets in the chain of title on the property is liable for the contamination of the property, whether or not they caused it. What the state programs have in common is to protect the good actors. … The best state programs extend the protection to anyone, as long as they are voluntarily willing to clean it up. Regulatory clarification has to do with setting clear, minimum standards for cleanup, which protect public health and safety, based on the type of use and the type of contaminant. For example, if you are going to redevelop a site for industrial use with lots of asphalt and warehouse buildings, the level of cleanup might be less than if you were going to redevelop the site as a housing project or park. The idea is to deal with the specific levels of contamination for each known toxic substance and tailor the cleanup to the future use. Without the standards, you have what we have now in California, which is a negotiated cleanup on every site, rather than knowing that all sites are getting cleaned to a safe level. The financing issue is front-end financing. The two most critical things for land recycling when contamination is involved are finding out what's there and finding out what it will cost to remediate it to an acceptable level. As a developer, whether you're private, public or nonprofit, you have front-end development costs that are out of pocket. These are all high-risk costs. When you add environmental impairment, that increases the risk. … In the inner-city sites, an injection of capital can make the deal go forward where it would not otherwise go forward. CP&DR What are the first steps a local agency should take when redeveloping a brownfield site? Brewster There are some excellent educational programs available. One of them is the EPA's Targeted Site Assessment program. Another is CCLR's one-day workshops aimed at local government staff and project managers. There's a tremendous amount of resources available through EPA. There's information, there's a grant program. There's also an environmental financial handbook on the EFAB section of the EPA website. The handbook is a compendium of all the financing tools available for brownfield redevelopment and other environmental projects. CP&DR How does local government maintain momentum during the long brownfield redevelopment process? Brewster The environmental part of it is not all that difficult. Site assessment can be done in a matter of weeks. Putting numbers to it is relatively easy. With the remediation itself, the current practice is to combine the remediation with development. For instance, if there's one section of the site that has soil contamination, that knowledge goes into the design process. You could make the contaminated part of the site a parking lot rather than building housing there. CP&DR So, the environmental constraints don't necessarily lengthen the project? Brewster That's correct. CP&DR What's a recent success story? Brewster It's gotten to the point that between the private sector and redevelopment agencies, the number of sites that have been remediated has become rather large. Virtually every urban site has some level of environmental impairment, and dealing with that environmental impairment is just one part of developing the site. CP&DR Fair enough. What's an example of a project that failed? Brewster It's the ones that are well-located, close-in sites in less-affluent areas that are very suitable for redevelopment but don't go forward because of the uncertainty and misperceptions around contamination. CP&DR What are the misperceptions? Brewster The fear of risk, and cost-uncertainty and liability. There are approximately 100,000 brownfield sites in the state, and most of them still are not being developed. The ones that could most benefit the community are in inner-city neighborhoods, especially in economically impacted neighborhoods of color where any investment would improve the local economic conditions. Those are the sites that are sitting undeveloped because local government and community development groups don't have the tools or the knowledge to overcome the perceptions that come with potential contamination.