Few other land uses inspire ambivalence like the highway, and rightly so. Like the twin Hindu deities, Brahman and Vishnu, the highway is both creator and destroyer, giving life to cities and then making them uninhabitable. Serving the role played by the railroad and the river in earlier times, the highway is the city's lifeline to the larger world. And just as the river and the railroad each gave the city a new kind of settlement, the highway has given rise to its own type of urbanism: the strip. No wonder, then, that the strip is the dominant pattern of development of the American West: It is the landscape defined by the highway. If the life of the city depends on the highway, however, the city is also poisoned by it. The ugly black scar on the landscape cuts the city in half and serves as unofficial line of demarcation that separates people by income or class or race. It is a difficult fissure to mend, either in social equity or urban design. That's why the Downtown Revitalization Program in Cathedral City, a small Coachella Valley town between Palm Springs and Rancho Mirage, should be of great interest to planners in small cities throughout the state. Cathedral City has found a way of taming the highway by changing the high-speed arterial into a signalized boulevard with plentiful landscaping, sidewalks and frontage roads for local traffic. The highway strategy has allowed Cathedral City to incorporate the arterial into the city's new downtown, rather than forcing the city to work around it. While other cities have found ways of slowing down the thoroughfare in the center of town, the multi-layered strategy in Cathedral City should become a reference point for other cities with similar problems. With a population of 37,000 residents, Cathedral City is a lower-middle-class bedroom community in a region where the differences between affluent and not-so-affluent are very apparent. The city was long considered a patch of bad scenery between Palm Springs and Rancho Mirage on Highway 111, the royal road of the Coachella Valley's golf resorts. Both sides of the highway were "disinvestment" zones, to borrow a phrase from the city. On the south lay a series of boarded-up or tacky buildings that have corroded the edge of a residential neighborhood. To the north are the vestiges of the old downtown, as well as strip retail. That streetscape was not good advertising for Cathedral City, which is traversed by 35,000 highway travelers daily. "It looked like a barrio," said Redevelopment Director Susan Moeller. "Buildings either were not maintained or painted bright orange. It was the worst stretch of the highway in the whole valley." Ironically, the new downtown got its start, in part, as a planning exercise about highway widening. In 1992, the city set out to solve two problems: the city needed a new city hall, which was then located in rented facilities just south of the highway. And the city needed to widen the highway to ease a downtown traffic bottleneck. Urban designer Michael Freedman of Freedman, Tung & Bottomley told a task force that the easy solution would be to build a new city hall outside downtown on land already owned by the city. But the best choice, he added, would be to build a new city hall as the centerpiece of a new downtown master plan. The task force chose the latter, and Freedman provided several alternatives for a new downtown in Cathedral City. The grandest of the alternatives is Master Plan A, which locates a large new city hall building and town square a few blocks north of Highway 111. Surrounding city hall on the east, west, and south will be "revitalized neighborhoods," while mixed-use development will be concentrated along the northern highway frontage. The design also calls for a new bridge to span the flood-control channel immediately north of downtown, connecting the new civic center with the Perez Road shopping area to the north. The city is not shy about eminent domain, and may end up condemning and clearing about 65 acres of the 100-acre downtown plan area to create the space for the city hall, town square and retail buildings. The most significant part of the downtown plan, at least in my view, is the design guidelines to turn the highway into a boulevard. After identifying certain intersections as the cause of traffic bottlenecks, the city decided to widen the four-lane road into six lanes along those intersections. Elsewhere, the highway remains four lanes throughout the downtown core, and is bordered by frontage streets both north and south. Resembling the side streets used in the street-car era, the new frontage streets allow cars to turn off the highway and park behind planted medians; angled parking is provided for commercial space north of the highway, while parallel parking is provided on the south, in front of new residential development. Sidewalks are available for pedestrians of the highway, and a bicycle path is integrated into one of the medians. In short, the highway has become a street — now known as East Palm Canyon Drive — that can support local merchants, provide access to local housing, and be used by pedestrians and bicyclists. (Caltrans allowed the new traffic signals and other changes to the highway only after surrounding cities gave their permission.) The new downtown plan has already inspired a new spate of downtown development, including a luxurious Ritz-Carlton, while three retail developers are busy in the civic center area. Surprisingly or not, Moeller reports that she "has taken a lot of hits," over the project. "A lot of people don't want anything that will slow down the 50-mile-an-hour traffic," she said. I predict (maybe I just hope) that the complaining will stop when the "greensward" landscaping is in place and Cathedral City becomes a highlight of a drive through the Coachella Valley, rather than a stretch of shabbiness in the desert. At any rate, anyone who complains about slower traffic is missing the point about Cathedral City, which represents one solution to the problem of how best to benefit from the highway, while minimizing its destructive aspects. That's worth slowing down a little bit, isn't it? Honk if you love the pedestrian-friendly highway.

A four-year-old pilot project intended to improve the quality of water flowing into the southern end of San Francisco Bay continues to move forward. Interests ranging from builders to environmentalists to regulators are participating in the Santa Clara Basin Watershed Management Initiative (WMI), and a detailed watersheds characteristics report — an important baseline document — is due out this month. Although the broad-based approach to dealing with entire watersheds is happening in an urban area, most of the creeks are fairly healthy and no single problem has reached a crisis level. Some people say these conditions improve the WMI's chances of succeeding. However, some environmentalists are questioning the effectiveness of the WMI, and participants agree that implementing major cleanups or changes in land-use strategy could become difficult. "It's got the best and the worst," said Ted Smith, Executive Director of the Silicon Valley Toxics Coalition. "The best is that everybody is involved and the worst is that everybody is involved." Two regulatory agencies — the U.S. Environmental Protection Agency and the San Francisco Regional Water Quality Control Board — initiated two pilot projects. One focuses on the Napa River, where an extensive flood-control and river restoration project is underway. The other is the Santa Clara Basin WMI, which is less focused. About 30 public agencies, business associations, and environmental and civic groups are "signatories" of the WMI. Every signatory has one voting representative, and thus far all decisions have been made by consensus. Funding has come from signatories, with the entity that stands to benefit most from a particular project providing the bulk of funding for that effort, according to Mary Ellen Dick, WMI chair and a City of San Jose administrative officer. State agencies and CalFed also provide money, The biggest accomplishment to date is getting all of the parties in one room, she said. "People are really talking to each other about what we are trying to accomplish. That has spilled over into how we coordinate projects," Dick said. Other people agreed that agencies are working more closely with one another because of the WMI. Dan Cloak, of Eisenberg Olivieri and Associates and an engineer for the Santa Clara Valley Urban Runoff Pollution Prevention Program, pointed to three significant factors regarding the WMI. First, most watershed management approaches have been undertaken in rural areas with few landowners, he said. In urban areas, regulatory agencies often cannot even agree on basic watershed characteristics. But WMI signatories have reached consensus on fundamentals pretty easily, he said. Second, the Santa Clara Basin has several examples of "smart growth," such as urban limit lines in San Jose and Milpitas, San Jose's downtown and midtown redevelopment, and The Crossroads transit-oriented development in Mountain View, he said. The watershed approach fits with these smart growth intentions. Third, many area creeks do not run through culverts or even in channels, and many still support native fish, Cloak said. Dams are rare and surface water is generally clean. These conditions provide an better base from which to work than, for example, in Los Angeles, where concrete lines so many waterways. Still, implementing plans for healthy watersheds — such as leaving room for creeks to meander and, on occasion, flood — will be difficult, Cloak said. This will require buying land, gaining easements and working with landowners to be stewards. Stanley Williams, general manager of the Santa Clara Valley Water District, noted that conflicting goals also make implementation difficult. His own agency is supposed to enhance and restore streams, at the same time it is supposed to prevent floods and control erosion. Another WMI goal, simplifying regulatory compliance, a favorite of the building industry, could potentially conflict with the goal of protecting natural resources, which is the bottom line for environmentalists. Smith, whose toxics coalition is a WMI signatory, sees "a fair amount of inertia" at the WMI. For example, the WMI established total maximum daily loads (TMDLs) for copper and nickel in the South Bay. Copper and nickel do not present the worst pollution problem, although they are high-profile contaminants. But the TMDL process has not been easy, and establishing related oversight and monitoring of San Jose's wastewater treatment plant, which discharges the metals, has proven even more difficult, he said. "It always gets down to who is going to pay for it. And no one is eager to do so," Smith said. Smith also pointed to the Guadalupe River, which runs through San Jose. The Guadalupe has one of the worst mercury contamination problems in the country because of runoff from the defunct Quicksilver Mine in the hills south of town. "Yet no one is willing to step up to the plate on that one," he said. Smith said for the WMI to be more effective, the EPA and Regional Water Quality Control Board need to apply pressure, the WMI must establish more efficient processes, and effected agencies should commit more funding. Still, the WMI continues to move forward, and the Guadalupe River is in the WMI's sites. Dick noted that while the watershed approach has been tried elsewhere in the country, in most of those cases everyone could agree on the foremost issue. In Napa, for example, the flooding threat is obvious and bring everyone together. The Santa Clara Basin, however, lacks such a well-defined problem, she noted. So there is no real model for the WMI to follow as it goes about its business, she said. A mercury TMDL for the Guadalupe River, funded primarily by the Santa Clara Valley Water District, is underway, Dick said. Also, the signatories recently agreed to a framework for assessing watersheds, and experts are now beginning to use the framework to study three watersheds — the Guadalupe River, San Francisquito Creek (which forms the boundary between Santa Clara and San Mateo counties) and Upper Penitencia Creek (on the basin's east side). Those three watersheds are representative of the basin, said Alice Ringer, WMI project coordinator. The draft assessment reports will be ready in about a year. From there, WMI members can design alternative resource management strategies, which will be evaluated for cost and effectiveness. Eventually, all of this will get compiled into a Watershed Management Plan. "That becomes something that various groups and agencies can adopt as something they are willing to undertake," Ringer said. The WMI is really the first phase of a much larger — and undefined — project, Dick said. Eventually, the WMI likely will become institutionalized in the form of a joint powers authority or a new government agency, she said. Contacts: Mary Ellen Dick, WMI chair, (408) 277-5520. Alice Ringer, WMI program manager, (408) 945-3024. Ted Smith, Silicon Valley Toxics Coalition executive director, (408) 287-6707. Dan Cloak, EOA, Inc., (408) 720-8811. WMI website: www.ci.san-jose.ca.us/esd/wmi.htm

The U.S. Supreme Court has declined to review a takings case involving a San Francisco housing law, but Associate Justice Antonin Scalia issued a scathing dissent in which he equated San Francisco's law with extortion and questioned a state appellate court's willingness to follow "takings" precedents. Ten years ago, San Francisco rejected the application of Claude and Micheline Lambert, who asked to convert 24 units of their Cornell Hotel from residential to tourist use. San Francisco's hotel conversion ordinance prevents the conversion of residential hotel rooms unless the landowner provides replacement units or pays replacement costs. The city insisted replacement would cost $600,000. The Lambert's said they would pay only $100,000. But no fee was ever imposed because the Planning Commission denied the application due to affordable housing, neighborhood character and traffic concerns. The Lamberts sued, claiming that the city's denial was based on their refusal to pay the $600,000. But the trial court and the Second District Court of Appeal, on a 2-1 decision, said the mitigation fee issue was irrelevant and they ruled for the city. The state Supreme Court granted a petition in 1998, but last year unanimously decided it was a mistake to hear the case. (See CP&DR Legal Digest, September 1999, October 1997.) The Lamberts then sought a hearing before the U.S. Supreme Court. According to The New York Times, Scalia lobbied his colleagues for months to take the case. But in the end, only he and Justices Anthony Kennedy and Clarence Thomas voted to grant certiorari. Four votes were needed to hear the case. In a dissent from the denial of certiorari, which justices file only a few times a year, Scalia said the Lambert's refusal to pay an excessive fee was at the heart of the matter, and the high court's Nollan/Dolan standard regarding takings should apply. Nollan v. California Coastal Comm'n 483 U.S. 825 (1987); Dolan v. City of Tigard, 512 U.S. 374 (1994). Those cases require a nexus between conditions of project approval and the project impacts that are being offset. "It is simply and obviously not true that the commission ignored petitioners' refusal to satisfy its fee demand," Scalia wrote. He continued, "The object of the Court's holding in Nollan and Dolan was to protect against the State's cloaking within the permit process ‘an out-and-out plan of extortion.' There is no apparent reason why the phrasing of an extortionate demand as a condition precedent rather than as a condition subsequent should make a difference." Scalia further questioned portions of the Court of Appeal decision, which he called "so implausible as to call into question the state's court's willingness" to enforce the Nollan/Dolan standard on government officials. The case is Claude Lambert v. City and County of San Francisco, No. 99-697, 2000 Daily Journal D.A.R. 3161.

Property rights advocates suffered a second setback when the U.S. Supreme Court declined to hear a takings case from Florida. A man and his mother had purchased 40 acres, including 32 acres of swampland, in 1973 and began attempting to develop a housing tract and marina in 1980. They received state and U.S. Army Corps of Engineers permits in the early 1980s, but one state agency asked Monroe County to reconsider the project. The landowners sued and won, and the county again granted approvals in 1989. In the meantime, however, the original Corps of Engineers dredge-and-fill permit expired. The Corps refused to issue a new permit because of concerns about the Lower Keys marsh rabbit and the silver rice rat, both of which had been listed as endangered species since the corps issued the first permit. The landowners sued for damages, arguing that they had been deprived of all economically viable uses of their property. But the 11th U.S. Circuit Court of Appeals ruled that the property owner had no "reasonable, investment-backed expectations of developing his land" because the Corps of Engineers had long considered environmental factors when reviewing permit applications. Thus, the landowner was not entitled to payment for a government taking. The landowners' attorneys argued that "consideration of investment-backed expectations plays no role in per se takings" and that the 11th Circuit misread Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992), a landmark takings case that required compensation when regulations prohibit "all economically beneficial use of the land." The case is Good v. United States, 99-881.

Parcels delineated in pre-1893 subdivisions do not exist as separate lots unless there has been a transfer of title at some point, the Second District Court of Appeal has ruled. In addressing the status of antiquated subdivisions, the court ruled squarely in favor of local governments that have fought to prevent legal recognition of "paper subdivisions" created prior to laws regulating the subdivision of land. In answering an unresolved issue of state subdivision law, the court said that the title must have transferred for lots in these paper subdivisions to be recognized today. A map alone is not enough. "The concept that a subdivision parcel can be created without an actual transfer is entirely a creature of modern land use regulation," Presiding Justice Arthur Gilbert wrote for the unanimous three-judge panel of the Second District, Division Six. "We can only conclude that prior to statutes regulating subdivisions, there was no subdivision prior to the time an actual transfer took place." Landowners all over the state have continued to file lawsuits regarding lot line adjustments and certificates of compliance related to old maps, said Santa Barbara Chief Deputy County Counsel Alan Seltzer, the winning attorney in this case. Seltzer said that a contrary would have been devastating because there are at least 10 antiquated maps, including an "official map" of the entire county. "It would have immediately subdivided the rural, agricultural lands into thousands of 40-, 80- and 100-acre lots. It would have subdivided the whole county," Seltzer said. But John Dorwin, the landowner's attorney, said the appellate court misread the facts and the law. "It raises more questions that it disposes of. It purports to raise this transfer test that is nowhere in the Government Code or the Subdivision Map Act," Dorwin said. The court has clouded title to lots in all but the most recent subdivisions, he said. Circle K Ranch Corp. owns property in Santa Barbara County's Santa Ynez Valley. The property is within Rancho Canada de Los Pinos, for which a privately prepared map was recorded in 1888. "The portion of Circle K's property for which it seeks a certificate of compliance is delineated by laying the metes and bounds descriptions from Circle K's deed over the government survey drawn on the 1888 map," the court described. "Circle K seeks to use a township line designated on the map as a boundary to separate a portion of its parcel lying north of the line from the larger portion of its parcel lying south of the line. … The result is a 36-acre parcel roughly shaped like a triangle." There also were "official maps" adopted by the county in 1889 and 1909 "for the use of the Assessor's office." Circle K sought a certificate of compliance for the 36-acre parcel, which the Board of Supervisors denied. The board said that the survey line defining the proposed parcel's southern boundary was never a boundary of any parcel, and that the proposed lot had never been conveyed separately. Circle K sued but lost at the trial court. On appeal, Circle K argued that the case gave the court the opportunity to answer an unresolved question — namely, what is the status of subdivisions created on paper prior to the 1893 predecessor to the Subdivision Map Act, but never sold or leased as separate lots? The state Supreme Court skirted that question when it decided Morehart v. County of Santa Barbara, (1994) 7 Ca.4th 725. In that case, the court said the county could not force a landowner — who wanted to build a house on a small lot created in 1888 — to merge a collection of 1888 lots to create a 100-acre parcel that would meet current zoning. In answering Morehart's unresolved question, the court said that a transfer must have taken place for these 19th century lots to be valid today. The court further held that the Subdivision Map Act's grandfathering provisions "have no bearing on maps filed prior to the Act." And the court ruled that an "official map" adopted by the county for assessment purposes is inadequate for a certificate of compliance. In Circle K's case, the landowner sought to use a U.S. survey line as a boundary, "but United States government survey lines do not by themselves subdivide property. (John Taft Corp. v. Advisory Agency (1984) 161 Cal.App.3d 749, 757.) Circle K is simply seeking to create a parcel where none had existed before," Gilbert wrote. Circle K attorney Dorwin said the court got the facts wrong. He said the landowner did not rely on a government survey line, but instead pointed to a subdivision map signed by a private land surveyor and recorded at the county in 1888. Dorwin also said the 1909 map drawn up for assessment purposes was recorded the following year. Plus, a 1964 deed describes portions of the subdivision, he said. Furthermore, the court did not explain why curative statutes passed at various times by the Legislature since 1915 do not apply. "These maps are all good. We don't think there's a county that has a recorded official map that can defend against certificates of compliance," Dorwin said. But Seltzer said the maps in question here say that they are for taxes and revenue purposes only. The court made clear that what was called an "official map" in 1909 was not a map for subdivision purposes. Local governments do not want to recognize antiquated subdivisions because the lots would be created without regard to environmental review, zoning ordinances, general plans or fees. Seltzer said. The California State Association of Counties, the League of California Cities and the California Coastal Commission filed amicus briefs on Santa Barbara County's side. An estimated 100,000 to 400,000 lots, some as small at 2,000 square feet and miles from a road, exist in antiquated subdivisions across California. Dorwin said he would ask the state Supreme Court to review the case. He also said he might file suit in federal court. The Second District raised a federal question when it discussed a nonexistent U.S. land survey. There are also equal protection issues, and the landowner is a Delaware corporation he said. The Case: Circle K Ranch Corp. v. Board of Supervisors of the County of Santa Barbara, No. B124996, 00 C.D.O.S. 2276, 2000 Daily Journal D.A.R. 3063, filed March 21, 2000. The Lawyers: For Circle K: John Dorwin, (805) 688-8377. For Santa Barbara County: Alan Seltzer, chief deputy county counsel, (805) 568-2950.

A City of Los Angeles home occupation permit fee has survived a legal challenge from the Howard Jarvis Taxpayers Association. The Second District Court of Appeal ruled that the Jarvis lawsuit was filed too late, that the organization failed to follow administrative procedures for refunds and that a later repeal of the fee made claims for injunctive and declaratory relief moot. The court said a lawsuit challenging such fees must be brought within 90 days of their enactment so municipalities can have fiscal certainty. The decision brought outrage from Jarvis attorney Richard Fine, who said, "There's a definite split between the judiciary and the will of the people." The Los Angeles City Council approved a home occupation ordinance on November 20, 1996. The ordinance, which amended the city's zoning code, allowed a broad array of home-based businesses in all agricultural and residential zones, so long as they did not disturb the neighborhood. The measure required business owners to register with the city and pay a $25 registration fee to defray costs of administering the ordinance. The ordinance became effective January 4, 1997, and operative on March 5, 1997. Eighteen months later, the city amended the ordinance to eliminate the $25 fee. The Jarvis organization filed a lawsuit on October 24, 1997, seeking to overturn the fee and force the city to refund what it had collected. Jarvis argued that the fee violated Proposition 218, which requires a vote on property-based assessments. But Los Angeles County Superior Court Judge Edward Ross issued summary judgement for the city because the lawsuit was filed 203 days after the deadline for bringing a legal challenge. On appeal, Jarvis argued that the 90-day statute of limitations was inapplicable because the group was not challenging the ordinance itself — only the fee — and because the general three-year limitation periods of Code of Civil Procedure §338 (a) overrode the 90-day limit. A unanimous three-judge panel of the Second District said the 90-day limitations period applied. The opinion by Presiding Justice Roger Boren noted that the Jarvis lawsuit specifically sought to declare the ordinance "illegal" and "invalid." Citing Trend Homes, Inc. v. Central Unified School Dist., (1990) 220 Cal.App.3d 102, the court ruled that the shortened limitation period for lawsuits applies "where, as in the present case, the lawsuit claims that a zoning ordinance violates a constitutional spending limitation." Boren continued, "If the Association were permitted to wait three years before suing and then seek a three-year refund of fees and business taxes paid by all persons operating businesses out of their residences, the City's ability to plan fiscally would be improperly compromised." Even if the statute of limitations did not bar the lawsuit, the claim for injunctive and declaratory relief would be moot because the city had revoked the $25 fee prior to the trial court's summary judgement, the court ruled. As for the requested refunds, the court could not order the city to repay money unless each plaintiff had first filed a claim with the city, Boren wrote. Jarvis had submitted a claim naming only one plaintiff, and he later backed out. Fine, the attorney for Jarvis, disagreed with the court's interpretations. "Under Prop. 218, if you have any type of fee based on property, you have to go out to the public. Here, they tried to call it a zoning change," he said. Fine said that although he lost the case, he was glad the court published the opinion because, "I think it's about time the that the public see what the court is doing." He contended that courts "are trying to emasculate Proposition 218." Deputy City Attorney Judith Reel, however, said the city was glad win the case and see it published because the lawsuit was a "wholesale challenge" to the city's ability to tax businesses. For decades, the city has levied assessments under a business tax ordinance no matter where the enterprise was located, she said. "It's not a property-related tax," Reel said. "If a fee is imposed on optional activity, it is not subject to Prop. 218." The city also wanted the opinion published because it is defending five other lawsuits in which people seeking various refunds did not file claims, Reel added. The Case: Howard Jarvis Taxpayers Association v. City of Los Angeles, No. B130247, 00 C.D.O.S. 2303, 2000 Daily Journal D.A.R. 3095, filed February 28, 2000, ordered published March 22, 2000. The Lawyers: For Jarvis: Richard Fine, Richard I. Fine & Associates, (310) 277-5833. For Los Angeles: Judith Reel, deputy city attorney, (213) 847-0504.

The Department of Fish & Game's flat fees for reviewing documents under the California Environmental Quality Act do not constitute taxes even though the fees do not reflect the exact cost of the CEQA review in every case, the Third District Court of Appeal has ruled. In rejecting a Shasta County landowner's argument to the contrary, the Third District reaffirmed a longstanding principle of "takings" law that property-rights advocates have unsuccessfully sought to overturn: the courts should not overturn a governmental decision on fees so long as the government agency involved has exercised reasonable judgment in determining the fee scale. " s long as the cumulative amount of the fees does not surpass the cost of the regulatory program or service and the record discloses a reasonable basis to justify distributing the cost among payors, a fee does not become a tax simply because each payor is required to pay a predetermined fixed amount," Justice Vance Raye wrote for a unanimous three-judge panel. "Flat fees are not in legal effect taxes," Raye added, and therefore the fee mechanism does not violate Proposition 13. The ruling is the latest skirmish in a decade-long legal battle over the fees. In 1990, the Legislature passed a bill permitting the cash-strapped Department of Fish & Game to impose fees on CEQA applicants of $1,250 to review negative declarations and $850 to review environmental impact reports. What was controversial was the fact that these fees were imposed on applicants seeking approvals from other agencies, not from Fish & Game, and were supposed to be used to cover the cost of Fish & Game's review as a commenting agency. Dozens of other agencies play a similar role in the CEQA process, but only Fish & Game ever received legislative authority to charge for its review. Shasta County property owner Albert Mills challenged the fees and in 1994 a Superior Court judge ruled that although the statute was not unconstitutional on its face, it was unconstitutionally applied. In a 1995 settlement, Fish & Game refunded Mills's fee and stopped collecting the fees. But subsequently the Fish & Game employee union, California Association of Professional Scientists, challenged the settlement, claiming that in the absence of a finding that the statute itself was unconstitutional, Fish & Game could not stop collecting it. Sacramento County Superior Court Judge Jeffrey Gunther ruled in favor of the union and the fee was reinstated. (See CP&DR, January 1996 and April 1996.) Mills appealed Gunther's decision. Mills argued that the Fish & Game fee was, in fact, a tax and therefore could not be imposed without a two-thirds supermajority in the Legislature. In ruling for Fish & Game, the Third District relied heavily on Sinclair Paint Co. v. State Bd. Of Equalization, 15 Cal.4th 866 (1997), which identified three types of fees: special assessment, development fees, and regulatory fees. On appeal, Mills — supported by an amicus brief from the Pacific Legal Foundation — argued that the Fish & Game fee did not fall into any of these categories. In particular, Mills argued that because Fish & Game does not operate CEQA as a regulatory program, the fee in question is not a regulatory fee. But the court disagreed, concluding that "the Legislature has given Fish and Game a critical regulatory role in the complex regulatory structure created to safeguard precious environmental resources." The other question the court dealt with is the question of whether the Legislature has the latitude to establish a fixed fee regardless of the actual cost of the services. Mills argued that because the fee was fixed, it did not cover the actual cost of CEQA review and therefore must be considered a tax. However, wrote Raye: "We hold that a regulatory fee, to survive as a fee, does not require a precise cost-fee ratio. A regulatory fee is enacted for purposes broader than the privilege to use a service or to obtain a permit. … regulatory fee does not violate article XIII A when the fees collected do not surpass the costs of the regulatory programs they support and the cost allocations to individual payors have a reasonable basis on the record." The Third District found that Fish & Game's cost of CEQA review was far greater than the amount the department collected in fees. The Cases: California Association of Professional Scientists v. Department of Fish & Game, No. C023075, and Mills v. Department of Fish & Game, No. C023184, 00 CDOS 2760, filed April 10, 2000. The Lawyers: For California Association of Professional Respondents: Dennis F. Moss, (818) 246-0629. For Department of Fish & Game: Charles Getz, deputy attorney general, (415) 356-6348. For Albert Mills: Walter McNeill, (530) 243-0190.

Everybody in San Diego seems amazed that developer Doug Manchester is willing to guarantee the city $50 million in tax revenues from his yet-to-be-built hotel. Even he seems amazed. "I challenge any reputable developer to step forward and say he or she would do the same deal," Manchester wrote in an Op-Ed piece in the San Diego Union-Tribune last October. At that time, he was offering to guarantee $5 million annually for two years, not the same amount for 10 years, as he would later agree to. Manchester added that he made the offer "against advice from colleagues and family." Almost equally amazing, however, is that the city would make his promise a key provision in the financing of the city's new 46,000-seat baseball stadium for the Padres on San Diego's downtown waterfront. Welcome to public finance San Diego-style, made up of equal parts of Rube Goldberg and Evel Knievel. Mayor Susan Golding has rightly described the financing plan for the new ballpark as "the largest and most complicated redevelopment project this city has ever seen." With equal aptness, she might have added that the deal is also an oddity that proposes an entire urban entertainment district around the new ballpark, and makes the debt service for the ballpark itself reliant on the tax revenues derived from an otherwise unrelated project — Manchester's new hotel. It's ingenious, and maybe a little fragile, too, because it assumes that several aspects of the San Diego economy — tourism, the convention business, and entertainment/retail development — will all remain healthy for the next 10 years. The $411 million ballpark is a private project (the developer is Padres owner John Moores) with a public mandate: In November 1998, 60% of San Diego voters approved Proposition C, which earmarked $225 million in tax-exempt, lease-revenue bond financing for the stadium. The annual debt service on the bonds will be partly paid by the city, and partly by hotel-room taxes generated by Manchester's new hotel, which will stand directly across the street from the new ballpark. The Centre City Development Corporation, a private, nonprofit entity that serves as the city's redevelopment agency, will contribute $50 million of downtown tax increment, while the port district is contributing $21 million for infrastructure. The Padres themselves will contribute $115 million. The Padres also have the right to develop much of the 26-acre stadium site, including 950 rooms in three different hotels and 600,000 square feet of office space. In short, the Padres are getting a very rich subsidized deal, although the team has the decency, rare among major league franchises, of actually contributing equity to its own stadium. Manchester not only took a risk in guaranteeing 10 years of bed tax, but had to fight and threaten the city for the privilege of doing so. Manchester is a local developer who has been erecting office buildings and hotels downtown since 1984. News reports of his negotiations with the port, however, do not suggest that he received favorite-son treatment. Some reports of the on-again, off-again talks suggest that both the port and the mayor would have preferred another developer, and the port explored the possibility of building the hotel itself, and relying on below-market financing reserved for vital public-works projects. (Manchester protested publicly, saying rightly that such financing was improper for hotels, and that the project should remain in the private sector, i.e. with him.) Mayor Golding, for her part, told reporters last fall she was wary of doing business with a developer "who threatened to sue you every five minutes." Indeed, Manchester recently accepted about $11 million from the port district to settle a lawsuit for alleged loss of business due to delays in the completion of the convention center. And Manchester also hinted that he might sue the port district if the agency decided to build the hotel as a public project. The agency decided against the high-risk strategy of building its own hotel, and probably made a better decision in hiring an experienced hotel owner for the job. In the end, Manchester won the coveted project after agreeing to guarantee 10 years of bed taxes at $5 million per year, and construction commenced in March. (At about the same time, he started construction on an 800-room expansion of the nearby Hyatt Regency.) Notwithstanding Manchester's own self-dramatizing claim that no other developer would do the deal, just how risky is his guarantee? I believe it is risky, but not foolhardy. According to a consultant study, the waterfront needs another 3,000 hotel rooms to accommodate the recent expansion of the convention center. Manchester's two projects, plus the Padres' hotel entitlements, would satisfy that requirement. Currently, the downtown hotel market has room occupancies of about 75%, which is considered healthy. Multiply 1,200 rooms times a nightly room rate of about $150 (the prevailing low-end on the waterfront), times .75 to account for the occupancy, times 365 days, and the result is about $49.28 million. With a San Diego hotel room tax of 10.5%, the result is about $5.17 million. In other words, the deal squeaks through, at least with present-day numbers. It's true that Manchester can get stung. If the economy goes bad — and San Diego was the last major metropolitan area in California to recover from the recession — hotel occupancies could dip, and the developer might have to reach into his own pocket to make good on the guarantee. On the other hand, the ballpark deal cements Manchester as the dominant hotelier on the waterfront, which is benefiting from an estimated $1 billion in public and private investment. Even if Manchester gets stung and must pay the city a couple of hundred thousand dollars of his money from time to time, he has nevertheless positioned himself as the long-term king of San Diego waterfront hotels. From a distance, the developer's $50 million guarantee looks like a big gamble. For Manchester himself, however, it may just be a walk on the beach.

In a recently published opinion, the U.S. Ninth Circuit Court of Appeals allowed construction of a high school in Tucson, Arizona, despite contentions from environmentalists that the school would harm an endangered owl. The case involved differing opinions by experts and the trial judge's exclusion of testimony by two experts called by environmentalists. The Ninth Circuit ruled that Federal District Judge Frank Zapata did not rule unreasonably, and the three-judge appellate panel upheld the decision. The Ninth Circuit initially entered its decision last fall as a memorandum disposition. But the court on February 28 redesignated its ruling as an authored opinion by Chief Judge Proctor Hug Jr. In 1994, the Amphitheater School District purchased 73 acres in northwest Tucson as the site for a 2,100-student high school. After initial planning, the district purchased 17 more acres and shifted the proposed school site to avoid 30 acres containing three "dry washes." Construction in the seasonal waterways would have required an Army Corps of Engineers permit under the Clean Water Act and set off a consultation with the U.S. Fish and Wildlife Service regarding endangered species. When the district began clearing the remaining 60 acres in March 1998, the environmental group Defenders of Wildlife filed suit. The district court issued a temporary restraining order to halt the site work. During a three-day trial, Defenders of Wildlife argued that school construction would result in an unlawful "take" of a cactus ferruginous pygmy owl, an endangered species. But Judge Zapata ruled that there was inadequate evidence the rare bird would be harmed or harassed within the meaning of the Endangered Species Act (16 U.S.C. §§ 1531-1543). Zapata refused to grant the permanent injunction sought by Defenders of Wildlife, and he lifted the temporary restraining order. In reviewing the harm and harassment claims under the "clearly erroneous standard," the Ninth Circuit held that Zapata ruled correctly. "He observed that while the inference that an owl uses the 30 acre parcel is based on solid factual premises and well-founded expert opinion, the allegation that the construction of the high school will harm the owl lacks this support and is weakened by seemingly inconsistent facts," Hug wrote. "He noted that there was evidence that the owl can tolerate and even benefit from human activity, and that Defenders have only offered speculation that the activity associated with the school would harass the owl. He observed that the experts made little or no attempt to support their opinions with recorded observations of pygmy owls in similar circumstances or to draw analogies from other similar birds," Hug continued. Thus, Zapata's factual findings were not clearly erroneous, the court ruled. The court further ruled that Zapata acted appropriately in excluding testimony by a conservation biologist and by a Fish and Wildlife Service expert. The biologist conceded he could offer "an opinion as to the viability of the pygmy-owl population" but could not address this specific site. The Fish and Wildlife Service has a policy of preventing staff members from testifying in civil cases, and Zapata agreed that compelling testimony would place an undue burden on Fish and Wildlife Service employees. The court also ruled that the school district did not have to apply for an incidental take permit because applying for such a permit is not mandatory under the Endangered Species Act. Finally, the court ruled that Zapata correctly denied a motion for a new trial. Defenders of Wildlife sought a new trial under Federal Rules of Civil Procedure 59(a). The organization argued that the school district's last-minute pygmy owl survey was unscientific, that physical evidence was discovered after the trial that could indicate a pygmy owl presence, and that the court should have granted a continuance to allow Defenders to survey the site. The Ninth Circuit dismissed all three arguments. Defenders should have challenged the district's survey with their own expert during the trial and could have sought access to the sight during the pre-trial discovery period, the court ruled. "In addition, physical evidence that could indicate the presence of a pygmy owl on the site is not of the magnitude that would likely change the outcome of this case," Hug wrote. In a concurring opinion Circuit Judge Betty Fletcher warned others not to read too much into the decision. At the time of the lawsuit, the Fish and Wildlife Service had not designated critical habitat for the pygmy owl. Another lawsuit forced the Fish and Wildlife Service to act, and it designated 731,000 acres of critical habitat, including the school site, in July 1999. Federally permitted or federally funded projects within the area are affected by the designation. Fletcher noted this case was decided based on Defenders of Wildlife's evidence, not on the basis that a critical habitat designation does not apply to a private projects, such as the school. "We do not hold that the designation of critical habitat will never have any bearing on actions on private lands within designated critical habitat, and thus, our decision has limited value for any other case involving either the pygmy owl or private lands that lie within the mapped boundary of designated critical habitat," she wrote. The Case: Defenders of Wildlife v. Mike Bernal, No. 98-16099, 00 C.D.O.S. 1477, 2000 Daily Journal D.A.R. 2103, filed November 23, 1999, published February 28, 2000. The Lawyers: For Defenders of Wildlife: Eric Glitzenstein, Meyer & Glitzenstein, (202) 588-5206. For the school district: Denise Bainton, DeConcini, McDonald, Yetwin & Lacy, (520) 322-5000.

A new high school in Watsonville's coastal zone won the approval of the California Coastal Commission during the panel's March meeting. The decision came after local government leaders, environmentalists, farmers and Pajaro Valley Unified School District officials agreed to a complex pact that appears to end years of conflict over the proposed school. Opponents had long feared the school was a step toward development of farmland and coastal habitat. In voting to amend the Watsonville Local Coastal Plan to allow the 2,200-student school on 140 acres, coastal commissioners said they were impressed with the memorandum of understanding. Advocates, including Assemblyman Fred Keeley (D-Santa Cruz), who helped craft the deal, said the pact would protect 6,000 acres of Pajaro Valley farmland. The agreement gives the community a much-needed high school. In exchange, the City of Watsonville cannot annex additional land west of Highway 1 (with one minor exception), ending the city's longstanding plan to annex a 646-acre plot for housing development. City officials also agreed to introduce a "right to farm" ordinance and regulatory protections for environmentally sensitive areas near the high school site. City and county officials promised not to extend urban services into rural areas. The school district might have to alter architectural plans to fit the site, which the agreement modified slightly. The school district settled on the site at Harkins Slough and Lee roads in 1995, after a seven-year search. The Army Corps of Engineers has announced new permit regulations that will force builders to avoid wetlands and riparian areas. Under rules for Nationwide Permit 26 to take effect in July, developers and public agencies will be able to fill only one-half an acre of wetlands, rivers, or seasonal streams, a reduction from the current three-acre maximum. The Corps will also require that it be notified of activity impacting more than one-tenth of an acre of wetlands and creeks, down from one-third of an acre. "These changes to the national permit program reflect the administration's, and the Army's, commitment to protecting the nation's wetlands and reducing damages to communities from flooding," said Michael Davis, Deputy Assistant Secretary of the Army for Civil Works. Only three years ago, the Corps extended its "dredge and fill" regulations to projects involving one-third to three acres of wetlands, down from the previous range of one to ten acres. The Corps issues about 85,000 permits a year under the Clean Water Act. It is not often that a land-use hearing draws a congressman, an assemblywoman and an out-of-county supervisor. But a late-February hearing on the proposed Ahmanson Ranch development in eastern Ventura County attracted Rep. Brad Sherman (D-Sherman Oaks), Assemblywoman Sheila Kuehl (D-Santa Monica) and Los Angeles County Supervisor Zev Yaroslavsky — along with about 500 other people. The politicians and area residents urged the Army Corps of Engineers to require a new environmental impact statement for Ahmanson Ranch. They said a 1992 environmental study for the proposed 3,050-home subdivision was outdated because of the discovery on the site since then of the San Fernando Valley spineflower, which was thought to be extinct, and the California red-legged frog, an endangered species. They also argued that traffic and water concerns have increased since 1992. The Corps of Engineers has not yet made a decision on what level of review it will require. Washington Mutual, the Ahmanson Ranch developer, needs a Corps' permit to fill tributaries to East Las Virgenes Creek. Ventura County supervisors approved the project on the Ventura-Los Angeles County border in 1992 despite protests from Los Angeles, which would receive nearly all of the development's traffic. Since then, lawsuits and permitting processes have slowed the project. The state Board of Forestry has adopted temporary regulations for harvesting timber near waterways while the board continues to work on a permanent package of new rules. The temporary rules, effective for six months starting July 1, require loggers to leave at least 85% of forest canopy within 75 feet fish-bearing streams, and at least two-thirds of canopy within the next 75 feet. There also are restrictions on cutting trees on the steepest slopes and on winter road building. The rules, which affect private land from the Santa Cruz Mountains to the Oregon border, are intended to aid coho salmon and steelhead, whose numbers have declined dramatically in recent decades. (See CP&DR Environment Watch , December 1999.) Environmentalists argued that the rules are not strong enough to keep waters clear and cool, as the fish need. Loggers, who protested against proposed tighter limits, gave a mixed reaction to the temporary regulations. The Antioch City Council rejected a proposal to require real estate agents to tell prospective homebuyers about difficult commutes and crowded schools. The proposed ordinance stemmed from Measure U, a successful 1998 advisory measure targeted at developers of new houses. The ordinance, defeated on a 3-0 vote in mid-March, would have directed real estate agents to provide a disclosure statement saying that roads are heavily congested during commute hours and that children might have to attend crowded schools on the other side of town. It was unclear whether the disclosure would have applied only to new homes or to resale homes, too. Residents of Antioch, a fast-growing eastern Contra Costa County city of 81,000, have complained bitterly as traffic on Highway 4 and I-680 has lengthened the commute time to jobs centers about 30 miles west in Walnut Creek and Concord. A bill that would give landowners direct access to federal courts in local land-use disputes passed the U.S. House of Representatives in mid-March. The Private Property Rights Implementation Act, HR 2372, would allow landowners to bypass the state court system if a landowner were unsatisfied with the decision of a city or county. As things now stand, developers must first bring "takings" claims in state court before pursuing the matter in federal court. That process can last for several years, and even then federal courts can turn away lawsuits. Rep. Charles Canady (R-Florida), who authored the bill, described the current system as a "Kafkaesque legal maze." The American Planning Association, the National League of Cities and the Conference of (state) Chief Justices are among the bill's opponents. The bill, similar to one the house passed in 1997, received a 226-182 vote. President Clinton has vowed to veto the measure. Vice President Al Gore has also denounced the bill.

A vesting tentative parcel map approved in 1990 but never recorded as a final parcel map had expired by the time a developer tried to act on the map in 1996, the Second District Court of Appeal has ruled. The court held that under both the Subdivision Map Act and the Manhattan Beach Municipal Code, the map for a four-unit beachside condominium project was no longer valid. The unanimous three-judge panel also found that project opponents properly exhausted their administrative remedies even though they did not cite the municipal code during administrative hearings, and that the lawsuit over the project was timely filed. In September 1990, the City of Manhattan Beach approved Highland View Limited Partnership's vesting tentative parcel map and conditional use permit for four condominiums. A year later, Highland submitted a final parcel map to the city engineer, and the city approved the final parcel map in October 1991. Soon thereafter, Highland submitted the map for recording, but the county recorder refused to record the map because Highland failed to pay property taxes and did not submit monument inspection approval documentation. In 1996, when the economy improved, Highland paid the taxes and submitted the monument data, and the final parcel map was recorded with the limitation that "all future construction must comply with the zoning requirements in effect at the time of construction." Highland applied for a new conditional use permit in February 1997. During public hearings, project opponent Donald McPherson and a group calling itself the Height Increase Repeal Committee argued that the city should deny the permit because the city had reduced permissible building heights between 1990 and 1997. But the Planning Commission approved the project under the 1990 height regulations, and the City Council denied an appeal on September 2, 1997. Highland supposedly was in the process of getting a "certificate of correction" to delete the recorded map's reference to current zoning requirements. In late November, McPherson filed a lawsuit seeking a writ of mandate to rescind the conditional use permit and a preliminary injunction to halt construction. The court denied the preliminary injunction, and construction continued. However, Los Angeles County Superior Court Judge David Yaffe eventually ruled for McPherson, ordering the city to rescind the conditional use permit and enjoining Highland from building in violation of current height restrictions. Highland reduced the height of its buildings but the developer and the city still appealed the ruling. They argued that Municipal Code §11.24.020, which set a deadline of 36 months to record a parcel map, was preempted by the Subdivision Map Act (Government Code §66410). They argued that the Municipal Code's 36-month time limit was triggered by approval of the tentative parcel map, not the final map. If the time limit applies to approval of the tentative parcel map, the time limit would violate Subdivision Map Act provisions allowing time extensions for tentative maps. But the unanimous three-judge panel of the Second District rejected this argument. "There is no dispute the ordinance's reference to filing of a parcel map with the County Recorder must refer to a final parcel map, as only final maps are recorded with the County Recorder," Justice Earl Johnson Jr. wrote for the court. Johnson also cited other language in the Municipal Code to back this interpretation. Furthermore, the court ruled, Highland's vested rights under the tentative parcel map approved in 1990 had expired under the Subdivision Map Act itself. Rights conferred under a tentative parcel map expire in 36 months. In September 1993, the Legislature extended the life of all tentative parcel maps by two years, thus granting Highland its vested rights until September 1995. Highland and the city argued that although the tentative map expired prior to recordation in 1996, the developer maintained vesting rights by filing the final parcel map with the city engineer in 1991. The court also rejected this contention. "Under the unique circumstances of this case, we are compelled to hold the delivery of the final map to the city engineer did not constitute a timely filing for purposes of preserving vesting rights under the approved vesting tentative map. … To hold otherwise would permit a developer to secure tentative vesting rights in perpetuity, simply by submitting the map to the city engineer while cleverly, or inadvertently, withholding payment of the requisite taxes," Justice Johnson wrote. The court also ruled that project opponents did not have to cite Municipal Code sections to exhaust administrative remedies before filing a lawsuit. "McPherson raised the issue of untimely recording and expiration of the vesting tentative parcel map at every administrative proceeding. This was sufficient to satisfy the exhaustion requirements, whether the issue is decided under §11.24.020 or the statutory provisions of the Act," Johnson wrote. The court also said the 90-day period for filing a lawsuit started with the City Council's final action on the new conditional use permit in September 1997, not with Highland's recordation of the map in 1996, as the developer argued. The Case: Donald McPherson v. City of Manhattan Beach, No. B130132, 00 C.D.O.S. 1985, filed February 14, 2000, certified for publication March 10, 2000. The Lawyers: For McPherson: Michael Strumwasser, Strumwasser & Woocher, (310) 576-1233. For the city: Jeffrey Oderman, Rutan & Tucker, (714) 641-5100.

Everybody always complains about growth but nobody ever does anything about it. That, at least, is one way to view the March 7 election returns. According to most polls, sprawl tops many lists of community problems these days. But voters in almost a dozen California communities rejected the opportunity to use "ballot-box zoning" to stop growth and development. And it will be interesting to see whether that trend continues in the November election — when some very big anti-growth initiatives are scheduled to appear on local ballots in numerous parts of the state. Pro-growth forces throughout California easily carried the day on Super Tuesday, winning 11 of 15 land-use contests on local ballots throughout the state, according to an analysis by California Planning & Development Report. The pro-growth vote was strong and uniform throughout the state, including such traditional slow-growth bastions as Ventura County, Monterey, and Palo Alto. The only slow-growth victories came in the small college towns of Davis and San Luis Obispo, and in Orange County, where opposition to a proposed airport at the El Toro Marine Corps Air Base apparently motivated a large turnout to support future restrictions on jails, hazardous waste facilities and airports. A slow-growth argument also carried the day in the eastern Alameda County city of Livermore. In Ventura County, the first countywide test of the SOAR initiative — which requires voters to approve the rezoning of agricultural land or open space before development can occur — resulted in overwhelming victory for the applicant. Residential growth limits were narrowly defeated in the San Joaquin Valley commuter town of Tracy, where the imbalance of jobs and housing has become a major issue. Significantly, voters in three suburban cities — Glendora, Huntington Beach, and South San Francisco — approved big-box retail projects. A large retail project in Seal Beach also survived an initiative challenge. The 73% pro-growth success rate was one of the highest in any recent election. In the November 1999 election, pro- and slow-growth forces split 18 local ballot issues almost evenly. What's going on? Aren't California voters supposed to be ticked off about growth, the way Ventura County voters were in 1998 when they approved the SOAR open-space protection initiatives? Well, yes and no. It's true that California is unlike any other state in the way that local citizens frequently use "ballot-box zoning" to hash out development disputes. But unlike, say, the tax revolt kick-started by Proposition 13, we've never seen a full-blown revolution in land-use planning touched off by initiatives. In general, land-use initiatives are limited to select parts of the state where there exists a long tradition of ballot-box zoning — including some parts of the Bay Area, Ventura County, the Central Coast, and the San Diego area. During real estate booms, ballot measures expand into unlikely areas, such as the Inland Empire and the Central Valley, but the trend usually does not stick. When the real estate market tanks, local ballot activity in the land-use arena tails off. And slow-growthers haven't ever "broken through" to create an effective statewide movement. Unlike other states — including Washington and Arizona — we have not seen a statewide growth initiative in recent years, partly because California is so big and diverse nobody can figure out how to write one that stands a chance of winning. In the current real estate boom, California is following this historical trend. The traditional centers of ballot-box zoning are popping with activity. The number of measures statewide appears to be on the rise. And the whole business has not quite reached the point where it is a statewide movement. Indeed, an argument exists that the latest round of ballot-box zoning peaked with passage of the Save Open space and Agricultural Resources (SOAR) protections in Ventura County 18 months ago, even though SOAR was widely played in the national press as the leading edge of a trend. Since then, some minor ballot-box zoning measures have passed around the state, but all the big ones have lost, including the East Bay's Citizens Alliance for Public Planning (CAPP) initiatives last fall. But the final act may still lie ahead: the November 2000 ballot. Right now, the November ballot is shaping up as the most important test of ballot-box zoning since the election of November 1988 — the height of the 1980s real estate boom, when growth control measures appeared simultaneously on the ballot in Orange, Riverside, and San Diego counties. In the East Bay, the Sierra Club is likely to launch a major urban growth boundary initiative in Alameda County. Boundaries will also be on the ballot in the fast-growing Central Valley town of Modesto. A SOAR-style, open-space initiative will be voted on in San Luis Obispo County. And if recent history is any guide, we're likely to see two or three dozen smaller ballot-box zoning measures throughout the state. So will the voters become more impatient with growth between now and November? And will ballot-box success translate into an enduring statewide slow-growth movement at last? The answer is maybe. History would suggest that the longer a real estate boom lasts, the wearier of growth the voters become. And even in the mostly pro-growth results last Tuesday, there were some signs that slow-growth sentiment is spreading. Even though they were outspent something like 40 to 1, the slow-growth activists in Tracy came within 300 votes of victory — a remarkable achievement in an area represented in Congress by Richard Pombo, a real estate broker and militant property-rights advocate. The Tracy slow-growthers may well put their initiative back on the ballot in November, and they're likely to make a serious run at the City Council as well. If ballot-box zoning passes this November in both Tracy and Modesto — two Valley towns not known for electing environmentalists — that result might take slow-growth politics in California to a new plateau. If the fast-growing Central Valley were finally perceived as being ripe for slow-growth politics, a statewide movement might be viable after all. Yet, at the same time, there is no guarantee that even victories in Tracy and Modesto would spark a statewide movement. Two other high-profile ballot-box zoning contests in November will take place at the county level, in San Luis Obispo and Alameda. Past experience has shown that it is very difficult for slow-growth activists to win at the county level, where walking precincts is not as important as big mailers and media campaigns. The history of California is littered with voter revolts that almost happened. Over the next few months, we'll find out whether ballot-box zoning has enough "legs" as a political issue to create a political earthquake — or whether, instead, it will continue to cause nothing more than a series of minor tremors throughout the state.